Colorado

Open Government Guide

Author

Foreword

Open Records. Prior to enactment of the Colorado Public Records law in 1969, access to public records in Colorado was largely a matter of discretion of the custodian, except in cases where records were specifically made confidential by statute. This was even true of court records. See Times-Call Publ'g Co. Inc. v. Wingfield, 159 Colo. 172, 410 P.2d 511 (1966).

The Colorado Public Records law was inspired by and patterned after the federal Freedom of Information Act as originally enacted, before the 1974 amendments. See Denver Post Corp. v. University of Colorado, 739 P.2d 874 (1987). The Open Records Act contains a broad legislative declaration that all public records shall be open for inspection unless otherwise specifically provided by law. Colo. Rev. Stat. § 24-72-201. Consonant with this mandate, the Colorado Supreme Court has held that a public official has no authority to deny any person access to a public record unless there is a specific statute permitting the withholding of the information requested. Denver Publ'g Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974). In several particulars, the Colorado General Assembly determined to achieve the general policy of the Public Records Law differently than did Congress in the federal Freedom of Information Act. See Colorado Legislative Council Research Publication No. 126, Open Records for Colorado (1967). For example, the Colorado statutory scheme provides that all "personnel" files are exempt from disclosure regardless of whether they would cause an invasion of an individual's privacy. Colo. Rev. Stat. § 24-72-204(3)(a)(II)(A). In addition, most of the exemptions that parallel those of the Federal FOIA are not simply exempted from the disclosure requirements, but nondisclosure is mandatory. Id. at 204(3)(a). This gives parties who are the subject of information sought the right to challenge a request for disclosure of the information, which is not the case under the federal act. See Freedom Newspapers Inc. v. City of Colorado Springs, 739 P.2d 881 (Colo. App. 1987); CFI Steel Corp. v. Office of Air Pollution Control, 77 P.3d 933 (Colo. App. 2003).

The statute was amended in 1977 by the Criminal Justice Records Act, which dealt with all law enforcement investigative records and all court records in criminal prosecutions under separate legislation. Colo. Rev. Stat. §§ 24-72-301, et seq. This legislation gives criminal justice agencies, including courts and law enforcement agencies, discretion to withhold all criminal justice information other than records of official action, such as records of arrest, detention, charging, conviction, etc. The latter records are required to be maintained and available for public inspection, but even these records are subject to limited access orders or expungement after certain periods of time. In 1988, the Criminal Justice Records Act was amended to simplify the grounds and procedure for sealing of criminal justice records, but continues the requirement that records of official action be open unless they are ordered sealed.

Open Meetings. Colorado's open meetings law, known as the "Sunshine Law," was enacted by the people pursuant to a referendum held in 1972. Colo. Rev. Stat. §§ 24-6-401, et seq. The Sunshine Law was modeled after the Florida Government in the Sunshine Law. As initially enacted, this statute applied only to the General Assembly and "state agencies," i.e., agencies having statewide jurisdiction. The Sunshine Law has been liberally construed in favor of openness and to permit non-public sessions only in relatively narrowly defined circumstances. All discussions not falling within these "executive session" categories must be held in public, and in any event the discussion leading to the final decision must occur in public. See Cole v. State, 673 P.2d 345 (Colo. 1983).

A second statutory scheme (referred to herein as the "local government open meetings law") formerly applied to cities, counties and political subdivisions not having statewide jurisdiction. See Colo. Rev. Stat. § 29-9-101 (Repealed 1991). This statute provided that "all meetings" of local governmental agencies shall be held in public, but permitted executive sessions for determination of negotiation strategy, and "for consideration of documents or testimony given in confidence." The courts gave this statute a less than liberal construction, and held that executive sessions were appropriate for "deliberations" without limitation as to subject matter, so long as final decisions were made in public. See Hudspeth v. Board of County Comm'rs, 667 P.2d 775 (Colo. App. 1983); see also Glenwood Post v. City of Glenwood Springs, 731 P.2d 761 (Colo. App. 1986).

In 1991, the Colorado General Assembly enacted S.B. 91-33, which amended the Sunshine Law to apply to local governments as well as state agencies, thereby eliminating the two-tier system of open meetings laws. However, the amended statute still maintains different presumptions of openness and different particular provisions applicable to state and local public bodies.

Open Records

I. Statute

A. Who can request records?

1. Status of requester

"Any person" may inspect any public record at reasonable times. Colo. Rev. Stat. §§ 24-72-201, 24-72-203(1)(a). "Person" is defined as any natural person, including any public employee and any elected or appointed public official acting in an official or personal capacity, and any corporation, limited liability company, partnership, firm, or association. Colo. Rev. Stat. § 24-72-202(3).

Copying of records is subject to federal copyright and trademark laws. The state and its agencies, institutions, and political subdivisions may maintain an action to obtain and enforce copyright or trademark protection under federal law. Colo. Rev. Stat. § 24-72-203(4). This authorization, however, is not intended to restrict public access to fair use of copyrighted materials, see 17 U.S.C. § 107, and does not apply to writings which are merely lists or other compilations.

The "person in interest," the person who is the subject of a record, may have greater rights of access to records about that person than do others. See Colo. Rev. Stat. §§ 24-72-204(2)(a)(II), (3).

2. Purpose of request

Because all non-exempt public records are declared to be available for public inspection and copying, the purpose of the person requesting the records does not affect the right to inspect public records. Anderson v. Home Ins. Co., 924 P.2d 1123, 1126 (Colo. App. 1996).

3. Use of records

The Open Records Act does not restrict any subsequent use of the records provided or of information contained in them. However, requesters of access to criminal justice records must certify that they do not intend to use the records for solicitation of business for pecuniary gain. Colo. Rev. Stat. § 24-72-305.5.

4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

"State" Records in General. "Public Records" are defined to include records "made, maintained, or kept by the state or any agency, institution, a nonprofit corporation incorporated pursuant to Colo. Rev. Stat. § 23-5-121(2), or political subdivision of the state, or that are described in Colo. Rev. Stat. § 29-1-902, and held by any local government-financed entity." Colo. Rev. Stat. § 24-72-202(6). The broad scope of this definition includes all agencies of the executive branch and legislative bodies.

"Political subdivisions" to which the Open Records Act applies include every county, city, town, school district, special district, public highway authority, rural transportation authority, and housing authority within the State of Colorado. Colo. Rev. Stat. § 24-72-202(5). The definition of "political subdivision" is to be liberally construed, and includes the State Compensation Insurance Authority, the state workers' compensation insurance fund. Dawson v. State Compensation Ins. Auth., 811 P.2d 408 (Colo. App. 1990).

The Act also applies to any "agency or instrumentality" of a political subdivision. Zubeck v. El Paso Cty. Ret. Plan, 961 P.2d 597 (Colo. App. 1998). The Act also applies to a non-profit corporation established by a governmental body to perform governmental functions with public funds and subject to governmental oversight, supervision, or control. Denver Post v. Stapleton Dev. Corp., 19 P.3d 36 (Colo. App. 2000).

The Act applies to every state institution of higher education and the respective governing boards. The University of Colorado and its regents are specifically included as a state "institution" to which the Act applies. Colo. Rev. Stat. § 24-72-202(1.5).

The act also applies to "institutionally related foundations," including health care foundations and real estate foundations. Colo. Rev. Stat. §§ 24-72-202(1.6), (1.8), (1.9). An institutionally related foundation is a nonprofit corporation, institute or similar entity that is organized for the benefit of an institution, and whose principal purpose is receiving private donations to be used for the benefit of that institution. Colo. Rev. Stat. §§ 24-72-202(1.6). "Public records" for such a foundation include all writings relating to the requests for disbursement or expenditure of funds. Colo. Rev. Stat. § 24-72-202(6)(a)(IV).

1. Executive branch

The Act applies to members of the Executive Branch.

All executives' records, as defined by the statute, are subject to the Act.

All records that are "made, maintained, or kept" by an executive officer or the executive branch agency "for use in the exercise of functions required or authorized by law or administrative rule or involving the expenditure of public funds" are covered by the Act.

Governor did not make, maintain or keep personal cell phone billing statements in his official capacity. Denver Post Corp. v. Ritter, 207 P.3d 954 (Colo. 2009). While governor made the telephone calls, the telephone service provider created and generated the phone bills. Id. at 1242. Governor did not maintain the records as they were kept solely to pay the bills and there was no evidence that the governor was responsible for updating the records. The term maintain, at the least means to "keep up or keep in good repair." Finally, it was stipulated that the governor kept the bills only to verify the amounts he owed and to pay them, which the court deemed is a personal, rather than official, function.

2. Legislative bodies

3. Courts

Not all court records are covered by the Act. See Office of State Court Administrator v. Background Info. Sys., 994 P.2d 420 (Colo. 1999). Absent statutory mandate dealing with particular court records, courts themselves retain authority over the dissemination of court records. Id. at 432. Examples of documents that must be made public under the Act include court registry of actions, judgment records, and records of official actions in criminal cases. Id. at 429. Criminal case files are subject to disclosure under the Criminal Justice Records Act. Id. See also Chief Justice Directive 2001-05-01. Non-case records of the judicial branch are not "public records" subject to CORA. Gleason v. Judicial Watch, 292 P.3d 1044 (Colo. App. 2012).

7. Others

C. What records are and are not subject to the act?

(1) "Public Records" Defined.

"Public records" subject to the Act are defined by Colo. Rev. Stat. § 24-72-202(6)(a)(I) generally to include all records made, maintained, or kept by the state or by any agency, institution, a nonprofit corporation incorporated pursuant to section 23-5-121(2), C.R.S., or political subdivision of the state (including cities, towns, and counties), or that are set forth in Colo. Rev. Stat. § 29-1-902, and held by any local government-financed entity:

For use in the exercise of functions required or authorized by law or administrative rule; or

Involving the receipt or expenditure of public funds.

A record not made, maintained or kept by a government actor in his official capacity is not a public record. Wick Commc'ns v. Montrose Cty. Bd. of Cty. Comm'rs, 81 P.3d 360 (Colo. 2003) (County manager's private diary was held not a public record); Denver Publ'g Co. v. Bd. of Cty. Comm'rs for Arapahoe Cty., 121 P.3d 190 (Colo. 2005) (sexually explicit text messages exchanged during work hours, on government provided paging devices, are not "public records" because their content does not discuss any official government activity).

(2) A person may request copies, printout, or photographs of any public record that the Act grants the right to inspect. Colo. Rev. Stat. § 24-72-205(1).

(3) "Public records" subject to the Act include "writings," which is defined by Colo. Rev. Stat. § 24-72-202(7) as meaning and including "all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials, regardless of physical form or characteristics." "Writings" also includes digitally stored data, including electronic mail messages. Id. However, computer software is specifically excluded from the definition of "writings" in Colo. Rev. Stat. § 24-72-202(7).

(4) "Public records" also includes the "correspondence" of elected officials, Colo. Rev. Stat. § 24-72-202(6)(a)(II), which is defined by Colo. Rev. Stat. § 24-72-202(1) as a communication sent or received by one or more specifically identified individuals and that is or can be produced in written form, including communications sent via U.S. mail, private courier, and electronic mail. However, "public records" does not include correspondence that is:

Work product, as defined in Colo. Rev. Stat. § 24-72-202(6.5);

Without a demonstrable connection to the exercise of functions authorized by law and does not involve the receipt or expenditure of public funds; or

A communication from a constituent to an elected official that clearly implies by its nature or content that the constituent expects that it is confidential or a communication from the elected official in response to such a communication from a constituent. Colo. Rev. Stat. § 24-72-202(6)(a)(II).

(5) In addition, the following records are expressly designated as public records by statute:

Under Colo. Rev. Stat. § 24-6-202, a written disclosure statement must be filed with the Secretary of State within 30 days after their election or appointment by all legislators, the Governor, Lieutenant Governor, Secretary of State, Attorney General, State Treasurer, judges, district attorneys, members of the State Board of Education, Regents of the University of Colorado, and members of the Public Utility Commission.

Disclosure is to include sources of income, investments over $5,000, real estate, offices and directorships, lobbyists, creditors to whom is owed $1,000 or more, and state-regulated businesses with which the official is associated.

The disclosure is also to include the same information for the official's spouse and minor children.

Each disclosure statement is public information, available to any person upon request during normal working hours. Colo. Rev. Stat. § 24-6-202(5).

Income tax returns filed with or in lieu of disclosure statements are also public information under Colo. Rev. Stat. § 24-6-202(6).

Under Colo. Rev. Stat. § 24-6-302, all registered professional lobbyists and firms organized for professional lobbying purposes that employ such lobbyists must file a disclosure statement with the Secretary of State that contains information about all contributions received by and spent by lobbyists, gift or entertainment expenditures, names of persons who have received contributions, and other specific information required by Colo. Rev. Stat. § 24-6-301(1.9).

Lobbyists' disclosure statements are public records of the Secretary of State, and shall be open and readily accessible for public inspection. Colo. Rev. Stat. § 24-6-304(2).

State Auditor Reports.

Reports of the State Auditor shall be open to public inspection except for portions of any report containing recommendations, comments, and any narrative statements, which are released only upon a majority vote of the audit committee. Colo. Rev. Stat. § 2-3-103(2).

Work papers of the State Auditor shall be open to public inspection only upon majority approval of the audit committee. Work papers are not open to public inspection until the completed report has been filed with the committee. Colo. Rev. Stat. § 2-3-103(3).

Division of Labor. All proceedings of the Division of Labor are public records under Colo. Rev. Stat. § 8-1-106(3).

Jail Records.

The keeper of the county jail is to keep daily records of the commitment and discharge of all persons delivered to his custody, including date of entrance, name, offense, sentence, fine, age, sex, citizenship, and times and conditions of commitment and discharge. The record shall be open to inspection by the public at all reasonable hours. Colo. Rev. Stat. § 17-26-118.

County Records.

All books and records required to be in the offices of the County Sheriff, clerk and recorder, treasurer, and clerk of the district and county courts are generally open to examination by any person. Colo. Rev. Stat. § 30-10-101(1). Any officer having the custody of such books and records may make "reasonable and general regulations" concerning their inspection by the public. Colo. Rev. Stat. § 30-10-101(2).

Court Records.

The judgment record and register of actions in all courts are declared open to public inspection during office hours by Colo. Rev. Stat. § 13-1-119. This statute provides that this information may also be presented on microfilm or computer terminal.

Pursuant to Colorado Supreme Court Chief Justice Directive 05-01, all books, records, pleadings, filings, documents, indexes, calendars, orders, judgments, decrees, minutes, registers of action, and any other materials in any court that are not declared to be private or confidential by statute or specific order shall be open to the public for reasonable inspection at reasonable times during business hours. The general policy is that court materials are open to the public unless they are closed for specific reasons by specific court order.

Although persons other than parties in interest and their attorneys may examine pleadings and other papers filed in actions pending before any court, they may do so at the discretion of the court. Times-Call Publ'g Co. v. Wingfield, 159 Colo. 172, 410 P.2d 611 (1966); see Colo. Rev. Stat. § 30-10-101(1). The Times-Call case holds that a statute that on its face limits the right of access to certain classes of persons, but does not expressly include access to others will, because of First Amendment considerations, be construed to confer discretion to permit access to the media. Moreover, where the subject matter of the action is of public interest, refusal to allow inspection is an abuse of discretion. Id. However in 2018, the Colorado Supreme Court held there is no First Amendment right of access to judicial records. People v. Owens, 420 P.3d 257 (Colo. 2018).

Records in civil cases may be sealed for privacy or similar reasons. Colo. R. Civ. P. 121, § 1-5.

Records of the county clerk and recorder pertaining to interests in real property are public records under Colo. Rev. Stat. § 30-10-101(1). However, under Colo. Rev. Stat. § 30-10-101(2), the clerk may make "reasonable and general regulations" concerning the inspection of such books and papers by the public.

Torrens Titles. Records of titles to real property registered under the Torrens Title Registration Act in the office of the registrar of titles are public records. Colo. Rev. Stat. § 38-36-150.

Professions and Occupations. The following are specifically declared to be public records:

Chiropractors. Records of the proceedings of the State Chiropractic Board and the register of all applications for licensing and all licensed chiropractors are declared to be public records under Colo. Rev. Stat. § 12-33-110.

Dentists. Records by the State Dental Board of all persons to whom dental licenses and license renewal certificates have been granted, and the numbers and dates of granting are declared by Colo. Rev. Stat. § 12-35-120 to be public records open to public inspection during ordinary hours.

Psychologists. Records by the grievance board of the names, addresses, educational qualifications, disclosure statements, therapeutic orientations or methodologies, and years of experience in each specialty area of all person practicing psychotherapy in the state are open to public inspection under Colo. Rev. Stat. § 12-43-220(1).

Real Estate Commission. Records of real estate licenses, investigations, and proceedings of the Real Estate commission kept in its office or in the Department of Regulatory Agencies are open to public inspection under Colo. Rev. Stat. § 12-61-112(1).

Motor Vehicle Records.

Records of the Department of Revenue pertaining to motor vehicle registrations, licenses and permits are declared to be confidential, consistent with the federal Driver's Privacy Protection Act of 1994 (18 U.S.C. § 2721, et seq.). Such records may be obtained by various parties in connection with motor vehicle matters, debt collection, litigation, or "research activities . . . so long as the personal information is not published, redisclosed, or used to contact the parties in interest." Colo. Rev. Stat. § 24-72-204(7) (2004).

Mobile home titles are public records under Colo. Rev. Stat. § 42-6-141.

Election Records.

All certificates of designation, petitions, certificates of nomination, acceptances, declinations, and withdrawals filed in connection with public elections are declared public records by Colo. Rev. Stat. § 1-4-504.

Election ballots are also subject to inspection under the conditions specified in the Act. Colo. Rev. Stat. § 24-72-205.5.

Voter Registration Records.

Voter registration books in the custody of the county clerk and recorder are declared to be public records subject to examination during office hours under Colo. Rev. Stat. § 1-2-227.

Division of Correctional Industries.

Records of the Division of Correctional Industries, including accounts of all monies received by and disbursed on its behalf, are public records open to inspection under Colo. Rev. Stat. § 17-24-107.

Minutes of Meetings of State Agencies.

The minutes of a meeting of any state board, committee, commission or other policy-making or rule-making body shall be open to public inspection under Colo. Rev. Stat. § 24-6-402(d)(I).

(6) Criminal Records.

Criminal justice records are the subject of a separate part of the Open Records Act, Colo. Rev. Stat. §§ 24-72-301, et seq. Records of official actions of criminal justice agencies are declared open to inspection by any person by Colo. Rev. Stat. § 24-72-303; all other records of criminal justice agencies are open for inspection but subject to withholding at the discretion of the records custodian upon a determination that disclosure would be "contrary to the public interest."

Records of Official Actions. Records of "official actions" include records of any arrests, indictments, releases from custody, parole decisions, sentencing decisions, and dispositions of cases. Colo. Rev. Stat. § 24-72-302(7).

Other Records. All criminal justice records other than records of official actions are open to inspection by any person at reasonable times at the discretion of the official custodian. Colo. Rev. Stat. § 24-72-304(1).

Disclosure "contrary to public interest." The custodian may deny access to records of investigations, intelligence information, or security procedures of any sheriff, district attorney, police, or other law enforcement agency. Colo. Rev. Stat. § 24-72-305(5). See Losavio v. Mayber, 178 Colo. 184, 496 P.2d 1032 (1972) (holding under former law that some official action records may not be available, overruling § 24-72-303).

Where the police have a legitimate interest in avoiding disclosure of potential criminal conduct not ripe for prosecution, full access may be denied to police intelligence information, including taped recordings of an informant's statements that mentioned the petitioner's name. Pretash v. City of Leadville, 715 P.2d 1272 (Colo. App. 1985).

Solicitation of Business. Criminal justice records and records of official actions are not to be used for the purpose of soliciting business for pecuniary gain. The custodian shall deny access to records unless the person making the request signs a statement affirming that the records will not be used to solicit business. Colo. Rev. Stat. § 24-72-305.5. See Lanphere & Urbaniak v. Colorado, 21 F.3d 1508 (10th Cir. 1994) (Colo. Rev. Stat. § 24-72-305.5, although a content-based restriction on commercial speech under the First Amendment, is valid under the Central Hudson framework.)

Procedure upon denial.

The applicant can request a written statement from the custodian of the grounds for the denial of access. The statement must be provided within 72 hours and must cite the law or regulation under which access is denied or the general nature of the public interest protected. Colo. Rev. Stat. § 24-72-305(6).

The person denied access can also apply to the district court for an order directing the custodian to show cause why inspection of the record should not be allowed. The court can order the custodian to permit inspection if denial was improper, and may also award the applicant court costs, attorney fees, and a $25 per day penalty if the denial was arbitrary and capricious. Colo. Rev. Stat. § 24-72-305(7).

iii. Types of Records. "Criminal justice records" subject to inspection include books, papers, cards, photographs, tapes, recordings, and other documentary materials made, maintained, or kept by any criminal justice agency in the state for use in the exercise of functions required or authorized by law or administrative rule. Colo. Rev. Stat. § 24-72-302(4). Harris v. Denver Post Corp., 123 P.3d 1166 (Colo. 2005).

Copies. Fees for copies are set by the agency that has the records. Colo. Rev. Stat. § 24-72-306(1). If the custodian does not have facilities for making copies, the person requesting the records is to be granted access to the records to make copies. Colo. Rev. Stat. § 24-72-306(2).

Restricted Records. In certain areas, records of arrests, indictments, charges, and the identities of persons may be limited in release or sealed.

Sexual Assault Victims. The name of any victim of a sexual assault or alleged sexual assault is to be deleted from any criminal justice record prior to its release to any individual or agency other than a criminal justice agency when such record bears the notation "SEXUAL ASSAULT" as prescribed in Colo. Rev. Stat. § 24-72-304(4).

Authors of Correspondence. The court may order sealed any information in a criminal justice record, including basic identification information, to protect the author of any correspondence contained in the record. Colo. Rev. Stat. § 24-72-308(1.5).

Applicants in Regulated Professions or Occupations. Any division, board, commission, or person responsible for the licensing, certification, or registration functions for any governmental entity, in addition to any other authority conferred by law, may use fingerprints to access, for comparison purposes, arrest history records of any licensee, registrant, or person certified to practice a profession or occupation or applicant thereof, or any employee or prospective employee of a licensee, registrant, or person certified to practice an occupation or profession. Colo. Rev. Stat. § 24-72-305.4(1).

Sealed Records.

Criminal records may be sealed by court order upon the petition of a person in interest upon a finding that harm to the person's privacy or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records. Colo. Rev. Stat. § 24-72-308(1)(c). See R.J.Z. v. People, 104 P.3d 278 (Colo. App. 2004); People v. Bushu, 876 P.2d 106 (Colo. App. 1994); D.W.M. v. District Court, 751 P.2d 74 (Colo. App. 1988).

Records pertaining to traffic infractions and convictions for driving under the influence of alcohol or drugs and convictions for offenses involving unlawful sexual behavior may not be sealed. Colo. Rev. Stat. § 24-72-308(3).

Basic identification information is not subject to an order to seal records. Colo. Rev. Stat. § 24-72-308(1). This includes the name, place and date of birth, last known address, Social Security number, occupation and address of employment, physical description, photograph, handwritten signature, sex, fingerprints, and any known aliases of any person. Colo. Rev. Stat. § 24-72-302(2).

Upon an order to seal records, they are deemed not to exist, and the person who is the subject of the records may lawfully deny the criminal record. Colo. Rev. Stat. §§ 24-72-308(1)(d) and 24-72-308(1)(f). See D.W.M. v. District Court, 751 P.2d 74 (Colo. App. 1988).

After records have been sealed, inspection may be permitted by the court only upon the petition of the person who is the subject of the records or by the prosecutor, and only for reasons identified in the petition. Colo. Rev. Stat. § 24-72-308(1)(e).

In general, if a person is not charged, is acquitted or the charges are dismissed, the arrest and criminal information records of that person may be sealed upon the petition of the person in interest. Colo. Rev. Stat. § 24-72-308(1)(a)(I). See People v. D.K.B., 843 P.2d 1326 (Colo. 1993) (convicted persons may not have records sealed). However, arrest and criminal records information may not be sealed if an offense is not charged due to a plea agreement in a separate case, or a dismissal occurs as part of a plea agreement in a separate case. Colo. Rev. Stat. § 24-72-308(1)(a)(II).

vii. Electronic Mail.

The status of electronic mail as a public record is addressed in Colo. Rev. Stat. § 24-72-204.5. See Vol. 25 No. 10 Colorado Lawyer p. 99 (Oct. 1996).

Every state or agency, institution, or political subdivision thereof that maintains an electronic mail communications system is required to have adopted a written policy on any monitoring of electronic mail communications and the circumstances under which it will be conducted. Colo. Rev. Stat. § 24-72-204.5(1).

The policy shall include a statement that correspondence in the form of electronic mail may be a public record under the public records law and may be subject to public inspection under Colo. Rev. Stat. § 24-72-203. Colo. Rev. Stat. § 24-72-204.5(2).

1. What kinds of records are covered?

"Electronic mail" is defined by Colo. Rev. Stat. § 24-72-202(1.2) as an electronic message that is transmitted between two or more computers or electronic terminals, whether or not the message is converted to hard copy format after receipt and whether or not the message is viewed upon transmission or stored for later retrieval. "Electronic mail" includes electronic messages that are transmitted through a local, regional, or global computer network. However, electronic mail whose content does not bear a demonstrable connection to discharge of public functions or to the receipt or expenditure of public funds is not a public record. Denver Publ'g Co. v. Board of Cty. Comm'rs for Arapahoe Cty., 121 P.3d 190 (Colo. 2005).

3. Are certain records available for inspection but not copying?

4. Telephone call logs

Although call logs of calls paid for by the government are public records, the phone logs of the governor, connected to a "private" cell phone which he paid for, are not. Ritter v. Denver Post. Corp., 255 P.3d 1083 (Colo. 2011).

5. Electronic records (e.g., databases, metadata)

a. Can the requester choose a format for receiving records?

Yes. In 2017, the General Assembly enacted legislation specifying how custodians must produce records stored in a digital format. Specifically, the legislation provides that if a public record is stored in a digital format that (I) is neither searchable nor sortable, the custodian shall provide a copy of the public record in a digital format; (II) is searchable but not sortable, the custodian shall provide a copy of the public record in a searchable format; and (III) is sortable, the custodian shall provide a copy of the public record in a sortable format. Colo. Rev. Stat. § 24-72-203(3.5)(a) (2017). The custodian is not required to produce the record in searchable or sortable format if doing so would violate terms of an copyright or licensing agreement; it is not technologically or practically feasible to permanently remove information that the custodian is required or allowed to withhold in the requested format; or the custodian would be required to purchase software or create additional programming or functionality in its existing software to remove the information. Colo. Rev. Stat § 24-72-203(3.5)(b) (2017). If the custodian cannot comply with a request to produce a public record in the specified format, the custodian shall produce the record in an alternate format or issue a denial with a written declaration attesting to the reasons the custodian is not able to produce the record in the requested format. If a court subsequently rules the custodian should have provided the record in the requested format, attorneys’ fees may be awarded only if the custodian’s action was arbitrary and capricious. Colo. Rev. Stat. § 24-72-203(3.5)(c) (2017).

b. Can the requester obtain a customized search of computer databases to fit particular needs

Yes, however if the state or any of its agencies, institutions, or political subdivisions has performed a manipulation of data, so as to generate a record in a form not used by the state or by said agency, institution or political subdivision, a reasonable fee may be charged to the person making the request. Colo. Rev. Stat. § 24-72-205(3).

c. Does the existence of information in electronic format affect its openness?

No. Public records are defined as including all "writings" which are further defined as meaning and including "all books, papers, maps, photographs, cards, tapes, recordings or other documentary materials, regardless of physical form or characteristics." Furthermore, "writings" include "digitally stored data, including without limitation electronic mail messages, but does not include computer software." Colo. Rev. Stat. § 24-72-202(7).

d. Online dissemination

6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

Software is not a public record. Public records includes all writings, but writings is defined as "all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials, regardless of physical form or characteristics. 'Writings' includes digitally stored data, including without limitation electronic mail messages, but does not include computer software." Colo. Rev. Stat. § 24-72-202(7). Metadata may be public since it likely constitutes "digitally stored data." Colo. Rev. Stat. § 24-72-202(7).

10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

Costs of copies are to be determined in accordance with the Act, which provides that custodian may not charge a fee exceeding $0.25 per page for any standard sized page, and a fee not to exceed actual costs of providing a copy for other sized pages. Colo. Rev. Stat. § 24-72-205(1), (5)(a) (2007). However, an institution that is the custodian of scholastic achievement data on an individual person may charge a “reasonable” fee for a certified transcript of the data. Colo. Rev. Stat. § 24-72-205(5)(b) (2007). In practice, costs of copies depend upon the agency.

Custodians may charge $30/hour (after the first hour of free service) for research and retrieval of public records. Colo. Rev. Stat. § 24-72-205(6)(a). However, to be authorized to charge such fees, the custodian must have posted a written fee schedule as of the date the records request was submitted. Id.

No transmission fee may be charged to the record requester for transmitting public records via e-mail. Colo. Rev. Stat. § 24-72-205(1)(b) (2013).

Data Compilations. If, in response to a specific request, data available from public records has been manipulated so as to generate a record in a form not used by the governmental agency, a reasonable fee, not to exceed the actual cost of manipulating the date and generating the record, may be charged to the application. Colo. Rev. Stat. § 24-72-205(3).

Computer Records. Costs of copies of public records kept only in digitized or electronic form that are the result of computer output (other than word processing) may be based on actual incremental costs of providing the electronic services and products together with a reasonable portion of the costs associated with building and maintaining the information system. This fee may be waived or reduced by the custodian if the electronic services and products are to be used for a public purpose, including public agency program support, nonprofit activities, journalism, and academic research. Colo. Rev. Stat. § 24-72-205(4).

Costs of copies are not to exceed $0.25 per page for a standard sized page and not to exceed actual costs for other sized pages. Colo. Rev. Stat. §§ 24-72-205(1), (5). In practice, costs of copies depend upon the agency.

Data Compilations. If, in response to a specific request, data available from public records has been manipulated so as to generate a record in a form not used by the governmental agency, a reasonable fee, not to exceed the actual cost of manipulating the date and generating the record, may be charged to the application. Colo. Rev. Stat. § 24-72-205(3).

Computer Records. Costs of copies of public records that are the result of computer output (other than word processing) may be based on actual incremental costs of providing the electronic services and products together with a reasonable portion of the costs associated with building and maintaining the information system. This fee may be waived or reduced by the custodian if the electronic services and products are to be used for a public purpose, including public agency program support, nonprofit activities, journalism, and academic research. Colo. Rev. Stat. § 24-72-205(4).

If practical, copies are to be made in the place where records are kept. If other facilities are necessary, the cost of providing them is to be paid by the person desiring a copy of the records. Colo. Rev. Stat. § 24-72-205(2).

The custodian of records may charge the same fee for the services rendered by him or a deputy in supervising the copying as may be charged for the copies. Colo. Rev. Stat. § 24-72-205(2).

3. Provisions for fee waivers

Custodians of records in the form of computer output (other than word processing) have discretion to reduce or waive the fees associated with producing such records, upon request, if the electronic services and products are to be used for a public purpose, including journalism, non-profit activities and academic research. Colo. Rev. Stat. § 24-72-205(4).

2. Availability of an ombudsman

3. Commission or agency enforcement

F. Are there sanctions for noncompliance?

Any person who willfully and knowingly violates the provisions of the public records act is guilty of a misdemeanor, carrying a fine, upon conviction, of not more than $100 and/or imprisonment in the county jail for not more than 90 days. Colo. Rev. Stat. § 24-72-206
If the court finds that a criminal justice agency arbitrarily or capriciously withheld a criminal justice record, the court may impose a penalty of $25 per day (for each day of withholding) that must be personally paid by the custodian. Colo. Rev. Stat. § 24-72-305(7).

G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

A custodian may impose a fee in response to a request for the research and retrieval of public records only if the custodian has, prior to the date of receiving the request, either posted on the custodian’s web site or otherwise published a written policy that specified the applicable conditions concerning the research and retrieval of public records by the custodian, including the amount of the current fee. Colo. Rev. Stat. § 24-72-205(6)(a) (2014).

3. Records retention requirements

4. Provisions for broad, vague, or burdensome requests

II. Exemptions and other legal limitations

A. Exemptions in the open records statute

1. Character of exemptions

In the absence of a specific statute or court rule permitting information to be withheld, a public official has no authority to deny any person access to public records. Denver Publ'g Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974). Exemptions are patterned after the federal Freedom of Information Act, but there are discrepancies.

2. Discussion of each exemption

Public records not subject to the act

(1) The following records are specifically exempt from disclosure under the Act, except that such records, other than letters of reference concerning employment, licensing, or issuance of permits, shall be available to the person in interest.

Nor does it include group scholastic data from which the individual cannot be identified. See Sargent School Dist. No. RE-33J v. Western Services Inc., 751 P.2d 56 (Colo. 1988). However, individual scholastic data may not be disclosed under the Open Records Act even if the individuals’ names have been deleted. Id. The schools have no implied duty to convert individual scholastic data into group scholastic data documents.

Personnel files. Colo. Rev. Stat. § 24-72-204(3)(a)(II).

"Personnel files,” as defined by Colo. Rev. Stat. § 24-72-202(4.5), means and includes home addresses, telephone numbers, financial information, and other [similarly private] information maintained because of the employer-employee relationship, including other documents specifically exempt from disclosure by law. Only information that is akin to an employee’s home address, telephone number and personal financial information is properly classified as “personnel file.” Daniels v. City of Commerce City, 988 P.2d 648, 651 (Colo. App. 1999).

"Personnel files,” as defined by Colo. Rev. Stat. § 24-72-202(4.5), does not include applications of past or current employees, employment agreements, any amount paid or benefit provided incident to termination of employment, performance ratings, final sabbatical reports required under Colo. Rev. Stat. § 23-5-123, or any compensation, including expense allowances and benefits, paid to employees by the state, its agencies, institutions, or political subdivisions. Because employment applications are public records, an applicant cannot waive the right to information concerning denial of an application for employment. Carpenter v. Civil Service Commission, 813 P.2d 773 (Colo. App. 1990).

Records of an employee’s absence from the workplace are public records, including the reason given for the absence. Jefferson Cty. Educ. Assoc. v. Jefferson Cty. Sch. Dist., 378 P.3d 835, 839 (Colo. App. 2016) (requiring disclosure of records showing names of high-school teachers who reported in sick on particular days).

Only documents that are actually present in an employee’s personnel file are exempt from disclosure under the Act. Denver Post v. Univ. of Colo., 739 P.2d 874, 878 (Colo. App. 1987). A public employer cannot restrict access to documents that are otherwise subject public records merely by placing them in an employee’s personnel file; such records must implicate an employee’s personal privacy to qualify as a “personnel record.” Denver Publ'g Co. v. Univ. of Colo., 812 P.2d 682 (Colo. App. 1990).

Personnel files are available to the person in interest and to duly elected and appointed public officials who supervise the employee’s work. Colo. Rev. Stat. § 24-72-204(3)(a)(II)(A). See Ornelas v. Dep't of Institutions, 804 P.2d 235 (Colo. App. 1990).

Information about library and museum material contributed by private persons, Colo. Rev. Stat. § 24-72-204(3)(a)(V), but only to the extent of any limitations placed on such information as a condition of contribution. Thus, the identity of an anonymous donor may not be divulged if anonymity of the donor is a condition of the gift or loan.

Addresses and telephone numbers of students in public elementary and secondary schools. Colo. Rev. Stat. § 24-72-203(3)(a)(VI).

Records disclosing the addresses, telephone numbers, and personal financial information of past or present users of public utilities, public facilities, or recreational or cultural services owned and operated by the state, its agencies, institutions, or political subdivisions. Colo. Rev. Stat. § 24-72-203(3)(a)(IX).

Any records of sexual harassment complaints and investigations that are maintained pursuant to any rule of the general assembly on a sexual harassment policy, whether or not such records are maintained as part of a personnel files, are not open to inspection. Colo. Rev. Stat. § 24-72-204(3)(a)(X)(A). However, an administrative agency investigating the complaint may, upon a showing of necessity, gain access to information necessary to the investigation of such a complaint. Id.

A person in interest, who includes the person making a complaint and the person whose conduct is the subject of such a complaint, may make a record of sexual harassment complaint or investigation available for public inspection when such record supports the claim that an allegation of sexual harassment against such person is false. Colo. Rev. Stat. § 24-72-204(3)(a)(X)(C).

Records submitted by or on behalf of an applicant or candidate for an "executive position" who is not a "finalist" if the applicant or candidate makes a written request that the records be kept confidential at the time of submission of the records. Colo. Rev. Stat. § 24-72-204(3)(a)(XI)(A).

"Executive position" is defined by Colo. Rev. Stat. § 24-72-202(1.3) as any non-elective employment position with a state agency, institution, or political subdivision, except employment positions in the state personnel system or in a classified system or civil service system of an institution or political subdivision.

A "finalist" is defined by Colo. Rev. Stat. § 24-72-204(3)(a)(XI)(A) as an applicant or candidate for an executive position as the chief executive officer of a state agency, institution, or political subdivision or agency thereof who is a member of the final group of applicants or candidates made public pursuant to section 24-6-402(3.5); if only three or fewer applicants or candidates for the chief executive officer position possess the minimum qualifications for the position, then said applicants or candidates shall be considered finalists.

Records submitted by or on behalf of an applicant or candidate include records of employment selection processes for all executive positions, including selection processes conducted or assisted by private persons or firms at the request of a state agency, institution, or political subdivision. Colo. Rev. Stat. § 24-72-204(3)(a)(XI)(C).

Any record which is deemed confidential or protected from inspection by:

Specific details of bona fide research projects being conducted by a state institution. Colo. Rev. Stat. § 24-72-204(2)(a)(III).

Contents of real estate appraisals made for the state or political subdivision concerning acquisition of property for public use until title to the property has passed to the state or political subdivision. Colo. Rev. Stat. § 24-72-204(2)(a)(IV). The contents of an appraisal are available to the property owner if eminent domain proceedings are brought.

Any market analysis data generated by the Department of Transportation's bid analysis and management system for the confidential use of the department for awarding contracts or for the purchase of goods and services, and any records, documents, and automated systems prepared for the bid analysis and management system. Colo. Rev. Stat. § 24-72-204(2)(a)(V).

NOTE: If the right of inspection of any of the above records is allowed to any person in the media, it shall be allowed to all news media. Colo. Rev. Stat. § 24-72-204(2)(b).

(3) "Substantial Injury to the Public Interest."

The Open Records Act in Colo. Rev. Stat. § 24-72-204(6) provides that if the official custodian of any public record is of the opinion that disclosure of the contents of a record otherwise subject to disclosure would do "substantial injury to the public interest," the custodian may request the district court to order that disclosure of the record is restricted.

Any hearing is to be held "at the earliest practical time." The person seeking to examine the record has a right to appear at the hearing.

The custodian has the burden of proving that disclosure would substantially injure the public interest. This is primarily a question of fact. Civil Service Comm’n v. Pinder, 812 P.2d 645 (Colo. 1991). The unique circumstances surrounding a particular record must be so extraordinary that the legislative can be presumed not to have reasonably anticipated such a set of circumstances. See Civil Serv. Comm'n v. Pinder, 812 P.2d 645 (Colo. 1991).

If the court determines that disclosure would do "substantial injury to the public interest," the court may restrict access to public records even though such records might otherwise be available to the person in interest or the general public. Civil Service Comm'n v. Pinder, 812 P.2d 645 (Colo. 1991).

B. Other statutory exclusions

A number of Colorado statutes specifically provide that certain designated records are not public records subject to the Open Records Act and are to be kept confidential. Most of these exemptions from the Open Records Act pertain to records involving children and juveniles and to health records. These and other specific exemptions are discussed below.

Juvenile Records.

Juvenile Delinquency Records.

Court records.

Court records in juvenile delinquency proceedings or proceedings concerning a juvenile charged with the violation of any municipal ordinance except a traffic ordinance are open to inspection by various parties, including the juvenile, the juvenile's parent or guardian, any attorney of record, the juvenile probation department, any Colorado law enforcement agency, any person conducting a custody evaluation, and the state department of human services. Colo. Rev. Stat. § 19-1-304(1)(a). In addition, with the consent of the court, such records may be inspected by any other person having a legitimate interest in the proceedings. Colo. Rev. Stat. § 19-1-304(1)(b).

Arrest and criminal records.

The public has access to arrest and criminal records information that concerns a juvenile who is adjudicated a juvenile delinquent or is subject to a revocation of probation for committing the crime of possession of a handgun by a juvenile, an act that would constitute a class 1, 2, 3, or 4 felony, or an act that would constitute any crime that involves the use or possession of a weapon if such act were committed by an adult. Colo. Rev. Stat. § 19-1-304(1)(b.5)(II)(A). In addition, the public has access to arrest and criminal records information that concerns a juvenile charged with any such act. Colo. Rev. Stat. § 19-1-304(1)(b.5)(II)(B).

The public also has access to arrest and criminal records information concerning a juvenile between the ages of 12 and 18 years who is charged with the commission of an offense that would constitute a violent crime if committed by an adult. Colo. Rev. Stat. § 19-1-304(5).

All other records of law enforcement officers concerning juveniles are not open to public inspection except to the juvenile, the juvenile's parent or guardian, any attorney of record, and to other law enforcement agencies who have a legitimate need for such information, and under certain circumstances, including when the court orders that the juvenile be tried as an adult criminal or when the juvenile has escaped from an institution to which such juvenile has been committed. Colo. Rev. Stat. § 19-1-304(2)(a).

Probation records. A juvenile probation officer's records are not open to inspection except to certain parties, including persons who have consent of the court, the juvenile's parent or guardian, any attorney of record, any person conducting a custody evaluation, the state department of human services, and law enforcement officers and fire investigators, who have access to limited information. Colo. Rev. Stat. § 19-1-304(1)(c).

iii. Juvenile Facilities.

All records prepared or obtained by the department of human services are confidential and privileged, and may be disclosed only to the parents, legal guardian, or attorney for the juvenile, to the extent necessary to make claims on behalf of the juvenile who is eligible to receive aid, insurance, or medical assistance, and for research or evaluation purposes. Colo. Rev. Stat. § 19-1-305(1).

Children's Matters.

Child Victim Records. The name and any other information that would identify any child victim of the offenses listed below must be deleted from any criminal justice record prior to the release of such record to any individual or agency other than a criminal justice agency or the named victim or victim’s designee, when such record bears the notation “CHILD VICTIM”:

Internet sexual exploitation

Enticement of a child

iii. Internet luring of a child

Soliciting for child prostitution

Pandering of a child

Procurement of a child

vii. Keeping a place of child prostitution

viii. Pimping of a child

Inducement of child prostitution

Patronizing a prostituted child

Human trafficking of a minor for involuntary servitude

xii. Human trafficking of a minor for sexual servitude

Colo. Rev. Stat. § 24-72-304(4.5) (2016).

Child Abuse Records.

Reports of child abuse or neglect received by the Department of Social Services or a law enforcement agency, including the name and address of the child, family or informant, along with any other identifying information, are declared confidential and not open to the public under Colo. Rev. Stat. § 19-1-307(1)(a).

iii. Disclosure of reports is not prohibited when there is a death of a suspected victim of abuse or neglect and the death becomes a matter of public record, and the subject of an arrest and formal criminal charge. Colo. Rev. Stat. § 19-1-307(1)(b).

Child Care Centers. Records regarding children and all facts learned about children and their relatives that are required to be kept by licensed child care facilities are declared confidential by Colo. Rev. Stat. § 26-6-107(3).

Child Custody Records. Written reports and evaluations concerning custodial arrangements for children made in child custody proceedings are considered confidential and are not available for public inspection. Colo. Rev. Stat. § 14-10-127(1)(a)(II); Colo. Rev. Stat. § 14-10-126(2).

Adoption Records. Records and proceedings in adoption are confidential and not open to public inspection. Colo. Rev. Stat. § 19-1-309. The confidentiality provision applies to adult adoptions as well as to children's adoptions. W.D.A. v. City and County of Denver, 632 P.2d 582 (Colo. 1981).

Information provided to the state registrar of vital statistics concerning information about birth parents and adoptees shall not be disclosed under any public records law or Freedom of Information Act. Colo. Rev. Stat. § 25-2-113.5(9).

Relinquishment Proceedings. All records and proceedings in any action for relinquishment of a child by natural parents are confidential and open to inspection by court order for good cause shown. Colo. Rev. Stat. § 19-1-309.

Paternity Proceedings. All papers and records of proceedings in actions to establish paternity of a child are confidential and not subject to inspection except with consent of the court and all interested parties or upon court order for good cause shown. Colo. Rev. Stat. § 19-1-308.

However, information from patients' records may be made available for purposes of research into causes and treatment of alcoholism if patients' names or other identifying information is not disclosed. Colo. Rev. Stat. § 25-1-312(2).

Prescription Drug Records. Records of prescriptions, orders, and stocks of controlled substances kept by pharmacists are confidential and not available for public inspection. Colo. Rev. Stat. § 12-22-320.

Tuberculosis Reports. Laboratories performing diagnostic services are required to report the names of persons whose specimens reveal the presence of tuberculosis, but such reports and records are confidential under Colo. Rev. Stat. § 25-4-505.

AIDS Tests. Reports concerning positive tests for Acquired Immune Deficiency Syndrome (AIDS) that are required to be submitted to the State Department of Health by Colo. Rev. Stat. §§ 25-4-1402 and 25-4-1403 are declared to be strictly confidential by Colo. Rev. Stat. § 25-4-1404(1). Any physician, state employee or any other person who makes confidential AIDS information public is guilty of a misdemeanor and subject to a $5,000 fine and 2 years in jail. Colo. Rev. Stat. 25-4-1409(2).

Peer Review Records. Medical records produced for use in any review of a physician, surgeon or registered professional nurse by a hospital governing board, state board of medical examiners, state board of nursing, peer review committee, or other review organization do not become public records by virtue of such use. Colo. Rev. Stat. § 13-90-107(2); see also Colo. Rev. Stat. §§ 12-35-118(7), 12-36-118(10), and 12-38-120(10).

However, statements made by persons involved in an accident to law enforcement officers and contained in official reports are not confidential under Colo. Rev. Stat. § 42-4-1610. People v. Reyes, 42 Colo. App. 73, 589 P.2d 1385 (1979).

Agricultural Records. Statistical reports concerning farm operations, crop production, etc., made to the Commissioner of Agriculture are confidential. Colo. Rev. Stat. § 35-2-106. Disclosure by a state employee is a misdemeanor punishable by a $500 fine and 1 year in jail.

Information obtained as a result of fruit and vegetable inspections by the State Agricultural Commission are not open to public inspection. Colo. Rev. Stat. § 35-23-115.

Information concerning agricultural markets prepared for the Board of Marketing Control is confidential and not subject to public disclosure. Colo. Rev. Stat. § 35-28-119(2).

Arson Investigations. Information received by an insurance company or agency concerning arson investigations is confidential. Colo. Rev. Stat. § 10-4-1004(1).

Banking Records. Information from records of the State Division of Banking is not open to public inspection. Colo. Rev. Stat. § 11-2-111(1).

Disclosure of information acquired by the banking board and the bank commissioner concerning banks is prohibited by Colo. Rev. Stat. § 11-2-111.5.

Education Records. Department of Education records containing personal information about employment applicants, holders of teachers' certificates or letters of authorization, and pupil test scores are confidential and may not be disclosed except with written consent of the person in interest. Colo. Rev. Stat. § 22-2-111(3); see also Colo. Rev. Stat. §§ 24-72-204(3)(a)(II), (III), and (VI).

Employer Records. Information contained in reports furnished by employer and employees to the Division of Labor is considered confidential and is not open to the public. Colo. Rev. Stat. § 8-1-115(1). Disclosure of confidential information by a division of labor employee is punishable by a $1,000 fine and disqualification from state employment. Colo. Rev. Stat. § 8-1-115(2). This includes information required to be furnished by employers to the Division of Labor under the Workers' Compensation Act. Colo. Rev. Stat. § 8-47-202. However, records of the State Compensation Insurance Authority, the state workers' compensation insurance fund, are public. Dawson v. State Compensation Ins. Auth., 811 P.2d 408 (Colo. App. 1990).

Inquest Verdicts. If it is found in an inquest into the death of a person that a crime has been committed on the deceased, and the report names the person who the jury believes committed the crime, the inquest is not to be made public until after the suspect has been arrested. Colo. Rev. Stat. § 30-10-613.

Judicial Discipline Records. The record of an investigation of a judge conducted by the Commission on Judicial Discipline, including all papers filed and all proceedings, is confidential. Colo. Rev. Stat. § 24-72-401; see Colo. R. Jud. Discip. 6(a). See generally Wehmhoefer, "The Confidentiality of Judicial Disciplinary Proceedings," 17 Colorado Lawyer 1043 (June 1988).

However, the Commission's recommendation for removal, censure, discipline, suspension, or retirement of a judge is not confidential after it is filed with the Supreme Court. Colo. R. Jud. Discip. 6(a). See Colo. Rev. Stat. § 24-72-401.

Willful disclosure of the contents of papers filed with or proceedings before the judicial discipline commission is a misdemeanor punishable by a $500 fine. Colo. Rev. Stat. § 24-72-402.

Library User Records. Any record or other information of a public library which identifies a person as having requested or obtained specific materials or having otherwise used the library is confidential under Colo. Rev. Stat. § 24-90-119(1), and is excluded from the Open Records Act by Colo. Rev. Stat. § 24-72-204(3)(a)(VII).

Parole Records. Records containing information on parolees maintained by the Department of Corrections are not public records and are confidential. Confidential information may not be made public. Colo. Rev. Stat. § 17-2-104.

Public Securities Records. Records of ownership of or security interests in registered public obligations (municipal or special district bonds, etc.), are not subject to public inspection or copying under the Open Records Act. Colo. Rev. Stat. § 11-57-105.

Public Utility Property Schedules. Schedules required to be filed with the Department of Revenue by public utilities containing information about property owned by a public utility are considered private documents available only to tax officials. Colo. Rev. Stat. § 39-4-103(2).

Savings and Loan Records. Information acquired by the state commissioner of savings and loan institutions in the discharge of official duties concerning savings and loan institutions is not to be divulged. Colo. Rev. Stat. § 11-44-107.

Securities Records. Colo. Rev. Stat. § 11-51-703(2) of the Colorado Securities Act of 1981 provides that the securities commissioner or any of his officers or employees are not authorized to disclose information concerning securities transactions filed with the commissioner and not made public. Although records of a securities broker-dealer filed with the securities commissioner do not qualify as public records under Colo. Rev. Stat. § 24-72-204(3)(a)(IV) because they contain confidential commercial or financial information, the securities commissioner may disclose such records to other government agencies for purposes of law enforcement. Griffin v. S.W. Devanney & Co., 775 P.2d 555 (Colo. 1989).

Tax Records. Income tax returns, documents, reports, and information obtained from tax investigations are not to be divulged by the Department of Revenue. Colo. Rev. Stat. § 39-21-113(4)(a). Violation is a misdemeanor punishable by a $1,000 fine, and if the offender is an officer or employee, he or she shall be dismissed from office under Colo. Rev. Stat. § 39-21-113(6).

Trade Secrets. Under the Uniform Trade Secrets Act, Colo. Rev. Stat. § 7-74-101, et seq., a court in which an action for misappropriation of a trade secret is pending is to preserve the secrecy of a trade secret by reasonable means, including protective orders, sealed records, and gag orders. Colo. Rev. Stat. § 7-74-106.

Information furnished by employers to the Division of Labor that contains a trade secret, or information obtained through inspections or other proceedings by the Division of Labor that might reveal a trade secret is confidential information not to be divulged by the Division of Labor under Colo. Rev. Stat. § 8-1-115.

Information relating to trade secrets or secret processes concerning water quality control furnished to the State Water Quality Control Commissioner is confidential. Colo. Rev. Stat. § 25-8-405(2). However, this section does not prohibit full disclosures of effluent (pollution) data. See CF & I Steel v. Air Pollution Control Div., 77 P.3d 933 (Colo. App. 2003).

Welfare and Public Assistance Records. Disclosure of names or of any information concerning persons applying for or receiving public assistance and welfare is unlawful under Colo. Rev. Stat. § 26-1-114(3)(a), and is punishable by a $500 fine and 3 months in jail. Colo. Rev. Stat. § 26-1-114(5).

However, this right of privacy is surrendered when a welfare recipient becomes a criminal defendant charged with or convicted of a crime involving violation of welfare laws. Lincoln v. Denver Post, 31 Colo. App. 283, 501 P.2d 152 (1972).

Wills. Wills deposited with a court for safekeeping during the lifetime of the person who made the will are to be kept confidential. Colo. Rev. Stat. § 15-11-515.

Request for confidentiality by person in interest

Effective January 1, 1992, and pursuant to the procedures set forth in Colo. Rev. Stat. § 24-72-204(3.5), any person may request that the following records containing that person's address be kept confidential and exempt from public disclosure:

Voter registration records;

Motor vehicle registration and driver's license records; and

Records pertaining to disclosures required to be made by public officials pursuant to Colo. Rev. Stat. § 24-6-202.

The person requesting confidentiality must apply with the county clerk where the voter or motor vehicle records are located, or, in the case of records of disclosures by public officials, with the secretary of state, pay a fee of $5.00, and sign the following sworn statement: "I swear or affirm, under penalty of perjury, that I have reason to believe that I, or a member of my immediate family who resides in my household, will be exposed to criminal harassment, or otherwise be in danger of bodily harm, if my address is not kept confidential." Colo. Rev. Stat. § 24-72-204(3.5)(b). The request for confidentiality is itself confidential and exempt from public disclosure. Colo. Rev. Stat. § 24-72-204(3.5)(f).

If the above application for confidentiality has been made, the custodian of records shall deny the right of inspection of the person's address contained in such records on the ground that disclosure would be contrary to the public interest. Colo. Rev. Stat. § 24-72-204(3.5)(c).

The following persons are authorized by Colo. Rev. Stat. § 24-72-204(3.5)(c) to inspect records containing the person's address notwithstanding the request for confidentiality:

The person in interest, or any person authorized in writing by such individual;

Criminal justice agencies;

State or federal governmental agencies;

Persons required to obtain the individual's address in order to comply with state or federal law or regulations;

Vehicle manufacturers for the purpose of giving notice of product recalls or advisories.

News Media Exception. A duly accredited representative of the news media may request the custodian of records to verify the address of any individual whose address is otherwise protected from disclosure. Verification is limited to the custodian confirming or denying that the person's address as known to the representative of the news media is the address as shown by the records. Colo. Rev. Stat. § 24-72-204(3.5)(d).

Professional review board records

Closed. Records of the following Professional Review Committees concerning disciplinary actions, hearings, investigations, and reports are declared confidential and/or exempt from the Open Records Act: State Board of Dental Examiners, Colo. Rev. Stat. § 12-35-118(7); State Board of Medical Examiners, Colo. Rev. Stat. § 12-36-118(10); State Board of Nursing, Colo. Rev. Stat. § 12-38-120(10); State Board of Psychologist Examiners, Colo. Rev. Stat. § 12-43-705(4); State Board of Registration for Professional Engineers & Professional Land Surveyors.

Complaints and results of investigation are closed to public inspection during the investigatory period. Colo. Rev. Stat. §§ 12-25-109(2), 12-25-209(2). Otherwise, the board's records and papers are subject to Colo. Rev. Stat. §§ 24-72-203 and 24-72-204.

C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

Court Rules.

Limitations of Access to Court Files. A court may limit access to civil court files upon a showing by a person in interest that the public interest in access to the files is outweighed by harm to that person's privacy that access would cause. Colo. R. Civ. P. 121, 1-5. See Anderson v. Home Ins. Co., 924 P.2d 1123 (Colo. App. 1996). The court may also issue protective orders under Colo. R. Civ. P. 26(c) to restrict public access to materials obtained in discovery in civil litigation. See Bowlen v. District Court, 733 P.2d 1179 (Colo. 1987).

Attorney Discipline Records. Records of proceedings before the Supreme Court Attorney Disciplinary Committee are confidential and not to be made public under Colo. R. Civ. P. 241.24(a). Disclosure is punishable by contempt. An exception exists if the disciplinary proceeding is based on a lawyer's public discipline in another jurisdiction or on the lawyer's conviction of a crime, Colo. R. Civ. P. 241.24(b)(1), or if the proceeding is based on allegations that have already been made public. Colo. R. Civ. P. 241.24(b)(3). The lawyer may also waive confidentiality. Colo. R. Civ. P. 241.24(b)(2).

Grand Jury Proceedings. Grand Jury proceedings are secret until an indictment is made public or a grand jury report is issued. Colo. R. Crim. P. 6.2(a); see In re P.R. v. District Court, 637 P.2d 346 (Colo. 1981).

Court-Made Exemptions.

Attorney-Client Privilege. Because the Open Records Act specifically authorizes denial of inspection of "privileged information" in Colo. Rev. Stat. § 24-72-204(3)(a)(IV), common law attorney-client and attorney work product privileges are incorporated into the Open Records Act. Hence, communications between attorneys and clients and materials prepared by an attorney in anticipation of litigation are not public records subject to inspection. Denver Post v. University of Colorado, 739 P.2d 874, 880-81 (Colo. App. 1987).

Relation Between Open Records Act and Civil Discovery Rules. The Open Records Act does not limit access to any public records merely because a person is engaged in litigation with the public agency from which access to records is requested. People in Interest of A.A.T., 759 P.2d 853 (Colo. App. 1988). Thus, a court in which a civil action is pending has no jurisdiction to enter a protective order against a request under the Open Records Act. Id. And, a public agency may not deny an Open Records Act request on the ground that the rules of civil procedure governing discovery provide the exclusive means of obtaining the documents. Id. Where a party is entitled to public records, such as a personnel file, an Open Records request rather than a formal discovery request is sufficient. Ornelas v. Department of Institutions, 804 P.2d 235 (Colo. App. 1990). On the other hand, the exemptions of certain records from the public inspection provisions of the Open Records act do not ipso facto exempt such records from discovery in civil litigation. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

A. Autopsy and coroners reports

Open.

Coroners' autopsy reports are specifically excluded from the general medical records exemption under § 24-72-204(3)(a)(I). The Colorado Supreme Court has held that this section shows the clear intent of the legislature to classify autopsy reports as public records open to inspection. Denver Publ'g Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974). If it is found in an inquest into the death of a person that a crime has been committed on the deceased, and the report names the person who the jury believes committed the crime, the inquest is not to be made public until after the suspect has been arrested. Colo. Rev. Stat. § 30-10-613.

Autopsy reports are not criminal justice records. An autopsy report on a homicide victim may be withheld from public inspection by its custodian only under the procedure in the Open Records Act for denying access based on "substantial injury to the public interest." Freedom Newspapers Inc. v. Bowerman, 739 P.2d 881 (Colo. App. 1987); Bodelson v. Denver Post Corp., 5 P.3d 373 (Colo. App. 2000) (unique public grieving in the immediate aftermath of the Columbine High School massacre justifies non-disclosure of victims' autopsies).

Open. Upon conclusion of a civil or administrative investigation that is closed because no further investigation, discipline, or other agency response is warranted, all records not exempt pursuant to any other law are open to inspection. Colo. Rev. Stat. § 24-72-204(2)(a)(IX)(B). Records of ongoing civil or administrative investigations conducted by a state or agency in furtherance of their statutory authority to protect the public health, welfare, or safety may be withheld as contrary to the public interest, unless the investigation focuses on a person or persons inside of the investigative agency. Colo. Rev. Stat. § 24-72-204(2)(a)(IX)(A).

D. Budgets

E. Business records, financial data, trade secrets

If a business record is in the custody of a state agency and involves the receipt or expenditure of public funds, it is a public record under Colo. Rev. Stat. § 24-72-202(6) and subject to the Open Records Act. Freedom Newspapers Inc. v. Denver & Rio Grande Western R.R., 731 P.2d 740 (Colo. App. 1986).

Some business records in state custody may be specifically exempt from inspection. These include:

Information furnished by employers to the Division of Labor. Colo. Rev. Stat. §§ 8-1-115 and 8-47-202.

F. Contracts, proposals and bids

Open. Contracts made by any government agency involving an expenditure of public funds are open to inspection as public records under the Open Records Act. Freedom Newspapers Inc. v. Denver & Rio Grande Western R.R., 731 P.2d 740 (Colo. App. 1986). After a contract has been let, the bidding documents, of successful and unsuccessful bidders, are subject to inspection. See International Bhd. of Elec. Workers Local 68 v. Denver Metro. Major League Baseball Stadium Dist., 880 P.2d 160 (Colo. App. 1994); Denver Post v. Stapleton Dev. Corp., 19 P.3d 36 (Colo. App. 2000).

I. Election Records

Ballots are public records open to inspection pursuant to Colo. Rev. Stat. § 24-72-205.5(1)(a). However, the designated election official is not permitted to fulfill a request for the public inspection of ballots during the period commencing with the forty-fifth day preceding election day and concluding with the date either by which the designated election official is required to certify an official abstract of votes cast for the applicable candidate contest or ballot issue or ballot question, or by which any recount is completed, whichever date is later. Colo. Rev. Stat. § 24-72-205.5(3)(a).

J. Emergency Medical Services records

K. Gun permits

L. Homeland security and anti-terrorism measures

Records of the expenditure of public moneys on security arrangements or investigations, including contracts for security arrangements and records related to the procurement of, budgeting for, or expenditures on security systems, shall be open for inspection, except to the extent that they contain specialized details of security arrangements or investigations. A custodian may deny the right of inspection of only the portions of a record that contain specialized details of security arrangements or investigations and shall allow inspection of the remaining portions of the record.
A custodian may deny access to specialized details of either security arrangements or investigations or the physical and cyber assets of critical infrastructure, including the specific engineering, vulnerability, detailed design information, protective measures, emergency response plans, or system operational data of such assets that would be useful to a person in planning an attack on critical infrastructure but does not simply provide the general location of such infrastructure.
If an official custodian has custody of a public record provided by another public entity, including the state or a political subdivision, that contains specialized details of security arrangements or investigations, the official custodian shall refer a request to inspect that public record to the official custodian of the public entity that provided the record and shall disclose to the person making the request the names of the public entity and its official custodian to which the request is referred.
Colo. Rev. Stat § 24-72-204-(2)(a)(VIII)

N. Personnel records

"Personnel files," as defined by Colo. Rev. Stat. § 24-72-202(4.5), means and includes home addresses, telephone numbers, financial information, and other information maintained because of the employer-employee relationship, including other documents specifically exempt from disclosure by law. Only information that is similar in nature to an employee's home address, telephone number and personal financial information is properly classified as "personnel file." Daniels v. City of Commerce City, 988 P.2d 648, 651 (Colo. App. 1999).

"Personnel files" as defined by Colo. Rev. Stat. § 24-72-202(4.5) does not include applications of past or current employees, employment agreements, any amount paid or benefit provided incident to termination of employment, performance ratings, final sabbatical reports required under Colo. Rev. Stat. § 23-5-123, or any compensation, including expense allowances and benefits, paid to employees by the state, its agencies, institutions, or political subdivisions. See Freedom Newspapers Inc. v. Tollefson, 961 P.2d 1150 (Colo. App. 1998).

"Personnel files" as defined by Colo. Rev. Stat. § 24-72-202(4.5) also does not include records of an employee's absence from the workplace, including the reason given for the absence. Jefferson Cty. Educ. Assoc. v. Jefferson Cty. Sch. Dist., 378 P.3d 835, 839 (Colo. App. 2016) (requiring disclosure of records showing names of high-school teachers who reported in sick on particular days).

Personnel records that are not present in an employee's file but which involve privacy rights may be withheld from inspection only upon a showing in court that disclosure would do substantial injury to the public interest by invading the employee's constitutional privacy rights. Denver Post v. Univ. of Colo., 739 P.2d 874 (Colo. App. 1987).

2. Disciplinary records

Open. Only information that is similar in nature to an employee's home address, telephone number and personal financial information is properly classified as "personnel file." Daniels v. City of Commerce City, 988 P.2d 648, 651 (Colo. App. 1999).

6. Evaluations/performance reviews

7. Complaints filed against employees

8. Other

O. Police records

A record of official action must be available for public inspection unless one of the two exceptions applies: (1) non-disclosure is required by the Colorado Criminal Justice Records Act, or (2) non-disclosure is required by other law. In re People v. Thompson, 181 P.3d 1143, 1143-44 (2008); see Colo. Rev. Stat. § 24-72-301(2).

Colo Rev. Stat. § 24-72-304(1) provides that the custodian can exercise its discretion in determining whether disclosure of criminal justice records other than "records of official action" would be "contrary to the public interest." Custodian must articulate and balance the following factors: (1) the public interest in the investigation; (2) the private interest or danger of adverse consequences to the public involved; and (3) whether disclosure of a redacted file would satisfy the statutory objectives of disclosure and address any privacy concerns. Freedom Colo. Info., Inc. v. El Paso County Sheriff's Dep't, 196 P.3d 892, 903 (Colo. 2008).

1. Accident reports

2. Police blotter

3. 911 tapes

4. Investigatory records

Colo Rev. Stat. § 24-72-304(1) provides that the custodian can exercise its discretion in determining whether disclosure of criminal justice records other than "records of official action" would be "contrary to the public interest."

The statute does not differentiate between active and closed investigations. Investigatory records are subject to public inspection unless, in the opinion of the records custodian, their disclosure would be "contrary to the public interest." See Pretash v. City of Leadville, 715 P.2d 1272 (Colo. App. 1985) (inspection of records of active investigations may be denied if disclosure would impair or impede the investigation).

While a custodian may deny access to records of the investigations conducted by "any sheriff, prosecuting attorney, or police department," Colo. Rev. Stat. § 24-72-204(2)(a)(I), courts have interpreted "prosecuting attorney" narrowly so as to apply only to attorneys investigating "with an eye toward future criminal prosecution." Shook v. Pitkin Cty. Bd. of Cty. Comm’rs, 411 P.3d 158, 161-62 (Colo. App. 2015) (although county attorney investigated whether individual had violated land use code and, if so, how to bring her back into compliance, investigation exemption did not apply because there was no evidence that attorney investigated "for the purpose of a criminal prosecution").

5. Arrest records

Yes. "Records of Official Action" (which includes arrest) must be released for public inspection in their entirety. In re People v. Thompson, 181 P.3d 1143, 1143-44 (2008). Court held that this principle is subject only to the redaction of identifying information of any alleged sexual assault victims. Id.

6. Compilations of criminal histories

7. Victims

Victims' identities, insofar as they are part of police records, are public records subject to inspection. The only exception for adults is the name of victims of sexual assault. Colo. Rev. Stat. § 24-72-304(4).

With respect to child victims, the name and any other information that would identify any child victim of the offenses listed below must be deleted from any criminal justice record prior to the release of such record to any individual or agency other than a criminal justice agency or the named victim or victim' designee, when such record bears the notation "CHILD VICTIM":

8. Confessions

9. Confidential informants

Pursuant to Colo. Rev. Stat. § 24-72-204(2)(d), a custodian shall deny the right of inspection of any materials received, made, or kept by a witness protection board, the department of public safety, or a prosecuting attorney that are confidential pursuant to Colo. Rev. Stat. § 24-33.5-106.5. Colo. Rev. Stat. § 24-33.5-106.5(2)(a) provides that any materials received, made, or kept by a witness protection board, the department, or a prosecuting attorney concerning a witness protection matter shall be confidential.

Confidential informants' identities and statements are subject to withholding if their disclosure may harm an ongoing investigation or cause other injury to the public interest. Colo. Rev. Stat. § 24-72-305(5). See Pretash v. City of Leadville, 715 P.2d 1272 (Colo. App. 1985).

14. Police video (e.g, body camera footage, dashcam videos)

15. Biometric data (e.g., fingerprints)

16. Arrest/search warrants and supporting affidavits

17. Physical evidence

P. Prison, parole and probation reports

County jail records are public records open to inspection under Colo. Rev. Stat. § 17-26-118.

Prison records are open to public inspection since no specific exemption applies. Records of the Division of Correctional Industries are public under Colo. Rev. Stat. § 17-24-107.

Parole records kept by the Division of Adult Services of the Department of Corrections are closed to the public under Colo. Rev. Stat. § 17-2-104. Other parole records that are records of official actions of a criminal justice agency are open under Colo. Rev. Stat. § 24-72-303.

Probation records.

· Juveniles. Closed (except to persons having consent of court, limited access to law enforcement officers, any attorney of record in a juvenile or domestic action in which the juvenile is named, the state department of human services, parent or guardian of the juvenile, principal of the school where the juvenile is enrolled.). Colo. Rev. Stat. § 19-1-304(1)(c).

· Adults. Adult probation records which are records of an official action of a criminal justice agency are open public records under Colo. Rev. Stat. § 24-72-303(1).

Q. Professional licensing records

R. Public utility records

Utilities. Records of public utilities may be inspected only by the State Public Utilities Commission or by any person with authorization from the Commissioner. Colo. Rev. Stat. § 40-6-106.

Public Utilities Commission. Records of the Public Utilities Commission are subject to inspection under the Open Records Act. Copies of records are 20 cents per page under Colo. Rev. Stat. § 40-6-105(1).

S. Real estate appraisals, negotiations

1. Appraisals

Contents of real estate appraisals made for the state or political subdivision concerning acquisition of property for public use until title to the property has passed to the state or political subdivision. Colo. Rev. Stat. § 24-72-204(2)(a)(IV).
However, a custodian shall deny access to all records, including, but not limited to, analyses and maps, compiled or maintained pursuant to statute or rule by the department of natural resources or its divisions that are based on information related to private lands and identify or allow to be identified any specific Colorado landowners or lands, except that summary or aggregated data that do not specifically identify landowners or specific of parcels of land shall be disclosed. Colo. Rev. Stat. § 24-72-204(3)(a)(XXI).

1. Athletic records

2. Trustee records

3. Student records

4. School foundation/fundraising/donor records

5. Research material or publications

6. Other

U. State guard records

V. Tax records

W. Vital Statistics

Vital statistics records shall be treated as confidential, but the department of public health and environment shall, upon request, furnish to any applicant having a direct and tangible interest in a vital statistics record a certified copy of any record. Colo. Rev. Stat. § 25-2-117(1).

1. Birth certificates

Vital statistics records shall be treated as confidential, but the department of public health and environment shall, upon request, furnish to any applicant having a direct and tangible interest in a vital statistics record a certified copy of any record. Colo. Rev. Stat. § 25-2-117(1).

2. Marriage and divorce

Vital statistics records shall be treated as confidential, but the department of public health and environment shall, upon request, furnish to any applicant having a direct and tangible interest in a vital statistics record a certified copy of any record. Colo. Rev. Stat. § 25-2-117(1).

As of 2013, applications for a civil union license are expressly included with applications for marriage license as vital records that are treated as confidential for a period of fifty years. Colo. Rev. Stat. § 24-72-204(3)(a)(XIX)(A)-(B).

3. Death certificates

Vital statistics records shall be treated as confidential, but the department of public health and environment shall, upon request, furnish to any applicant having a direct and tangible interest in a vital statistics record a certified copy of any record. Colo. Rev. Stat. § 25-2-117(1).

4. Infectious disease and health epidemics

IV. Procedure for obtaining records

A. How to start

(1) Custodian of Records. Under the Open Records Act, the person to whom a request for inspection should be directed is the custodian of records. See Colo. Rev. Stat. § 24-72-203(1)(a). The first step, then, is to determine where the records are located and who has custody of them.

(2) Request for Inspection.

(a) Requests for inspection may be either written or oral. A written request may be made in advance; an oral request may be made to the custodian at the place where the records are kept.

(b) Inspection of public records must be done "at reasonable times." Colo. Rev. Stat. § 24-72-203(1)(a). The official custodian may make rules and regulations governing inspection of public records which are "reasonably necessary" for the protection of the records and the prevention of "unnecessary interference" with the regular duties of the custodian or his office. Colo. Rev. Stat. § 24-72-203(1)(a).

(c) Therefore, a person wanting to inspect records should inquire of their custodian whether any rules or regulations restrict of limit access to particular times, dates, etc., or whether written requests are required.

(d) As a general rule, the more specific the request the better. Any identification of the document by date, author, agency, subject matter is helpful to the custodian in locating the requested records.

(3) When Records are not Available.

(a) If the requested records are not in the custody or control of the person to whom application is made, that person must immediately notify the applicant that the records are not in his or her custody. Colo. Rev. Stat. § 24-72-203(2)(a). See Pruitt v. Rockwell, 886 P.2d 315 (Colo. App. 1994). The applicant may request written notification. The notification must state in detail, to the best of the person's knowledge and belief:

The reason for the absence of the records;

Their location; and

Who has custody or control of the records. Colo. Rev. Stat. § 24-72-203(2)(a).

(b) If an official custodian has custody of correspondence sent or received by an elected official, the custodian shall consult with the elected official prior to permitting inspection of the correspondence for the purpose of determining whether the correspondence is a public record. Colo. Rev. Stat. § 24-72-203(2)(b).

(c) If the requested records are in the custody or control of the person to whom application for inspection is made, but the records are in active use or storage, the custodian shall immediately notify the applicant that the records are not available at the time. The applicant may request written notification. The applicant may request that the custodian set a date and hour of the notification when the records will be available for inspection. Colo. Rev. Stat. § 24-72-203(3)(a). The date and hour set for inspection must be within a reasonable time after the request, presumed to be three days. Such period may be extended up to seven days if extenuating circumstances exist. A finding that extenuating circumstances exist shall be made in writing by the custodian and shall be provided to the person making the request within the three-day period. Colo. Rev. Stat. § 24-72-203(3)(b). Extenuating circumstances only exist when:

A broad request is made that encompasses all or substantially all of a large category of records and the request is without sufficient specificity to allow the custodian reasonably to gather the records within the three-day period;

A broad request is made that encompasses all or substantially all of a large category of records and the agency is unable to gather the records within the three-day period because the agency needs to devote all or substantially all of its resources to meeting an impending deadline or period of peak demand that is either unique or does not occur more often than once a month or, in the case of the general assembly or its staff or service agencies, the general assembly is in session.

1. Who receives a request?

2. Does the law cover oral requests?

Requests may be made orally. Custodians have been permitted to require written requests as part of their rule-making authority under the statute. See Citizens Progressive Alliance v. Southwestern Water Conservation Dist., 97 P.3d 308, 312 (Colo. App. 2004);

If records are available for inspection, then the person requesting them may also request copies, printouts, or photographs of the records. Colo. Rev. Stat. § 24-72-205(1).

If the custodian does not have facilities for making copies of the records, the applicant is to be granted access to the records in order to make copies. Colo. Rev. Stat. § 24-72-205(2).

Copies are to be made while the records are in the possession and under the supervision of the custodian.

The custodian may establish a reasonable schedule of times for making copies. Colo. Rev. Stat. § 24-72-205(2).

If the custodian denies access to any public record, the applicant may request a written statement of the grounds for the denial. The custodian's statement must cite the law or regulation under which access is denied. Colo. Rev. Stat. § 24-72-204(4).

Further, the applicant may apply to the district court of the district wherein the record is found for an order directing the custodian of such record to show cause why the custodian should not permit the inspection of such record. However, at least three business days prior to filing an application with the court, the applicant must file a written notice with the custodian informing the custodian that the applicant intends to file such application. Colo. Rev. Stat. § 24-72-204(5).

If an oral request is denied, the statute does not explicitly say that subsequent steps must be in writing. However, it appears to be the case.

3. Required contents of a written request

4. Can the requester choose a format for receiving records?

5. Availability of expedited processing

B. How long to wait

Denial of inspection

A public official has no authority to deny any person access to public records unless there is a specific statute permitting withholding of the information requested. Denver Post Corp. v. Univ. of Colo., 739 P.2d 874 (Colo. App. 1987). Waiver is not a ground for denial of access to public records. Carpenter v. Civil Service Comm'n, 813 P.2d 773 (Colo. App. 1990).

If the custodian denies access to a requested record, the applicant may request a written statement of the grounds for denial, with citation to the law or regulation under which access is denied. Colo. Rev. Stat. § 24-72-204(4); see Denver Publ'g Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974).

Inspection may be denied under a specific provision of the Open Records Act, under a specific statute requiring records to be confidential, or when the custodian has applied for and been granted a court order permitting him to restrict disclosure on the grounds that disclosure would do substantial injury to the public interest. Colo. Rev. Stat. § 24-72-204(6). If the denial is based on "deliberative process" privilege, custodian must provide Vaughn index and a sworn affidavit specifically describing each document withheld, explaining why each such document is privileged, and why disclosure would cause substantial injury to the public interest. Colo. Rev. Stat. § 24-72-204(3)(a)(XIII).

1. Statutory, regulatory or court-set time limits for agency response

All public records are open for inspection by any person at reasonable times, but the official custodian of any public records may make such rules as are reasonably necessary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian. Colo. Rev. Stat. § 24-72-203(1).
Where public records are kept only in miniaturized or digital form, the official custodian shall ensure public access to the public records without unreasonable delay. Colo. Rev. Stat. § 24-72-203(1).
If the public records requested are not readily available at the time an applicant asks to examine them, the custodian shall notify the applicant of this fact, and if requested by the applicant, the custodian shall set a date and hour at which time the records will be available for inspection within a reasonable time after the request. A "reasonable time" shall be presumed to be three working days or less. Under extenuating circumstances such period may be extended to no more than seven working days. A finding that extenuating circumstances exist shall be made in writing by the custodian and shall be provided to the person making the request within the three-day period. Colo. Rev. Stat. § 24-72-203(3).

2. Informal telephone inquiry as to status

3. Is delay recognized as a denial for appeal purposes?

4. Any other recourse to encourage a response

If the custodian denies access to any public record, the applicant may request a written statement of the grounds for the denial. The custodian's statement must cite the law or regulation under which access is denied. Colo. Rev. Stat. § 24-72-204(4).
Further, the applicant may apply to the district court of the district wherein the record is found for an order directing the custodian of such record to show cause why the custodian should not permit the inspection of such record. However, at least three business days prior to filing an application with the court, the applicant must file a written notice with the custodian informing the custodian that the applicant intends to file such application. Colo. Rev. Stat. § 24-72-204(5). If the custodian denies access to any public record, the applicant may request a written statement of the grounds for the denial. The custodian's statement must cite the law or regulation under which access is denied. Colo. Rev. Stat. § 24-72-204(4).
Further, the applicant may apply to the district court of the district wherein the record is found for an order directing the custodian of such record to show cause why the custodian should not permit the inspection of such record. However, at least three business days prior to filing an application with the court, the applicant must file a written notice with the custodian informing the custodian that the applicant intends to file such application. Colo. Rev. Stat. § 24-72-204(5).

C. Administrative appeal

1. Time limit to file an appeal

2. To whom is an appeal directed?

3. Fee issues

4. Contents of appeal

5. Waiting for a response

6. Subsequent remedies

D. Additional dispute resolution procedures

1. Attorney General

2. Ombudsperson

3. Other

E. Court action

1. Who may sue?

Any person whose request for access to or inspection of public records has been denied may seek an order directing the custodian to show why inspection should not be permitted. Colo. Rev. Stat. § 24-72-204(5).

2. Priority

3. Pro se

Persons seeking access to public records may proceed pro se. Although no rule restricts an applicant from filing an action under the Open Records Act pro se, any non-lawyer who acts as a lawyer on his or her own behalf is held to the same rules and knowledge of the law as an attorney. See Viles v. Scofield, 128 Colo. 185, 261 P.2d 148 (1953). Because the custodian will most likely be represented by the Attorney General or agency counsel, a pro se litigant would be at a distinct disadvantage. For an action under the Open Records Act brought (and lost) by an applicant pro se, see Uberoi v. Univ. of Colo., 686 P.2d 785 (Colo. 1984).

5. Pleading format

6. Time limit for filing suit

7. What court?

8. Burden of proof

9. Judicial remedies available

10. Litigation expenses

a. Attorney fees

Attorneys' fees and court costs shall be awarded to a person who has been denied access to public records and who subsequently prevails after applying to a court to have such records made open. Colo. Rev. Stat. § 24-72-204(5).

A "prevailing applicant" is "any person who applies for and receives an order from the district court requiring a custodian to permit inspection of a public record," even if that order permits inspection of less than all the records the applicant requested. Benefield v. Colo. Republican Party, 329 P.3d 262, 268 (Colo. 2014).

b. Court and litigation costs

Attorneys' fees and court costs shall be awarded to a person who has been denied access to public records and who subsequently prevails after applying to a court to have such records made open. Colo. Rev. Stat. § 24-72-204(5).

11. Fines

12. Other penalties

13. Settlement, pros and cons

F. Appealing initial court decisions

1. Appeal routes

There are two routes of appealing a district court decision which upholds denial of access to public records.

Appeal to the Court of Appeals pursuant to C.A.R. 4. This is the usual route. The drawbacks include a one-to-two year wait for a decision from the Court of Appeals, although this court has been more willing than the state Supreme Court to give effect to the Open Records Act. See, e.g., Western Services Inc. v. Sargent School Dist. No. RE-33J, 719 P.2d 355 (Colo. App. 1986), rev'd, 751 P.2d 56 (Colo. 1988).

If the applicant seeks to challenge the constitutionality of the statute under which inspection of records has been denied, appeal may be taken directly to the Supreme Court. See Colo. Rev. Stat. § 13-4-102(1)(b). When the proceeding raises a challenge to the constitutionality of the statute, a copy of the proceedings must be served on the attorney general under Colo. Rev. Stat. § 13-51-115, and Colo. R. Civ. P. 57(j). In general, a person seeking to challenge the constitutionality of a statute should bring an action for declaratory judgment along with the application for an order to show cause.

Petition for Writ to the Supreme Court pursuant to C.A.R. 21. In extraordinary cases, such as where immediate harm is threatened in the absence of disclosure, or where the issue presented is likely to arise again, the applicant may petition the Supreme Court directly under Appellate Rule 21 for a writ of mandamus directing the district court to order that inspection of public records be allowed. A Rule 21 petition is not a substitute for an appeal to the Court of Appeals.

2. Time limits for filing appeals

An appeal to the Court of Appeals must be filed within 45 days of the date of the final order in the district court. C.A.R. 4(a).
A petition to the Supreme Court under C.A.R. 21 should be filed at the earliest practicable time. There is no time limitations on the petition, but it must be "within a reasonable time" of the district court's order.

3. Contact of interested amici

a. Leave of Court Required. Briefs by amicus curiae (friends of the court) may be filed only with leave of the appellate court. C.A.R. 29. The standard procedure is for the amicus to tender the proposed brief along with the motion for leave to appeal as amicus curiae.

b. Interest of Amicus. A motion for leave must identify the interest of the amicus and state why an amicus brief is desirable.

c. Briefs of amicus curiae must be filed within the time for filing briefs allowed the party whose petition the amicus brief will support, unless the court grants leave for later filing. C.A.R. 29. Amicus curiae are generally restricted to the issues raised by the appealing parties, and any additional questions presented in a brief filed by an amicus brief will not be considered by the appellate court. United States Nat'l Bank v. People ex rel. Dunbar, 29 Colo. App. 93, 480 P.2d 849 (1970).

d. Oral Argument. "A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons." C.A.R. 29.

e. The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

G. Addressing government suits against disclosure

Open Meetings

I. Statute - basic application

The declared policy behind the Sunshine Law is that "the formation of public policy is public business and may not be conducted in secret." Colo. Rev. Stat. § 24-6-401. The Colorado Act was modeled after the Florida Government in the Sunshine Law. The same policy has been held to underlie the local agency open meetings law. Bagby v. School District No. 1, 106 Colo. 428, 528 P.2d 1299 (1974).

A. Who may attend?

1. Although who constitutes the "public" is not defined in the statute, it has been expressly held to allow the attendance of "citizens," see Littleton Educ. Ass'n v. Arapahoe Cty. School Dist. No. 6, 191 Colo. 411, 553 P.2d 793 (1976) (local agencies); Cole v. State, 673 P.2d 345 (Colo. 1983) (state agencies); and, by implication, to the media. See Gosliner v. Denver Election Comm'n, 191 Colo. 328, 552 P.2d 1010 (1976); Glenwood Post v. City of Glenwood Springs, 731 P.2d 761 (Colo. App. 1988). See also Bagby v. School Dist. No. 1, 186 Colo. 428, 528 P.2d 1299 (1974) (expressly holding that informal conferences of school boards must be open to the public and to the news media).

2. Even though reporters from the media are allowed access to attend meetings, this does not mean that the media have a right to broadcast public meetings where a potential for disruption of the meeting exists. Combined Commc'ns Corp. v. Finesilver, 672 F.2d 818 (10th Cir. 1982).

B. What governments are subject to the law?

1. State

Colo. Rev. Stat. § 24-6-402(1)(d) defines a "state public body" subject to the Sunshine Law as any board, committee, commission, or other advisory, policy-making, rule-making, decision-making, or formally constituted body of any state agency or authority, as well as to the general assembly (legislature). Also included within this definition are the governing board of any state institution of higher education, specifically including the Regents of the University of Colorado, and any public or private entity to which the state, or an official thereof, has delegated a governmental decision-making function, but not persons on the administrative staff of the state public body.

2. County

Boards of County Commissioners are to meet in open sessions by the provisions of Colo. Rev. Stat. § 30-10-302. That section provides that "all persons conducting themselves in an orderly manner may attend its meetings." This section was not repealed by S.B. 91-33.

This does not require that the doors to the meetings be kept physically open, only that free public access be allowed. Allen v. Board of Comm'rs, 178 Colo. 354, 497 P.2d 1026 (1972).

An exception to the requirement of open meetings exists for the "day-to-day oversight of property or supervision of employees by county commissioners." Colo. Rev. Stat. § 24-6-402(2)(f).

3. Local or municipal

Colo. Rev. Stat. § 24-6-402(1)(a) defines a "local public body" subject to the Sunshine Law as any board, committee, commission, authority, or other advisory, policy-making, rule-making, or formally constituted body of any political subdivision of the state, and any public or private entity to which a political subdivision, or an official thereof, has delegated a governmental decision-making function, but not persons on the administrative staff of the local public body.

A "political subdivision of the state" is defined by Colo. Rev. Stat. § 24-6-402(1)(c) as any county, city, town, home rule city, home rule county, home rule city and county (i.e., Denver), school district, special district, local improvement district, special improvement district, or service district.

School Boards. Regular and special meetings of the board of education of a school district are open to the public under Colo. Rev. Stat. §§ 22-32-108(5) and 24-6-402(2)(b). See Bagby v. School District No. 1, 186 Colo. 428, 528 P.2d 1299 (1974). In 2014, the General Assembly enacted legislation clarifying that "local public body" includes members of a board of education, school administration personnel, or a combination thereof who are involved in a meeting with a representative of employees at which a collective bargaining agreement is discussed. Colo. Rev. Stat. § 24-6-402(1)(a)(II) (2014). "Local public body" also includes the governing board of an institute charter school. Colo. Rev. Stat. § 24-6-402(1)(a)(III) (2016).

C. What bodies are covered by the law?

1. Executive branch agencies

a. What officials are covered?

The Sunshine Law expressly applies to all meetings of two or more members of any state agency or committee thereof. Colo. Rev. Stat. § 24-6-401(2)(a). See, e.g., Hyde v. Banking Bd., 38 Colo. App. 41, 552 P.2d 32 (1976).

b. Are certain executive functions covered?

The Sunshine Law expressly applies to all meetings of two or more members of any state agency or committee thereof. Colo. Rev. Stat. § 24-6-401(2)(a). See, e.g., Hyde v. Banking Bd., 38 Colo. App. 41, 552 P.2d 32 (1976).

c. Are only certain agencies subject to the act?

The Sunshine Law expressly applies to all meetings of two or more members of any state agency or committee thereof at which public business is discussed. Colo. Rev. Stat. § 24-6-401(2)(a). See, e.g., Hyde v. Banking Bd., 38 Colo. App. 41, 552 P.2d 32 (1976).

2. Legislative bodies

Colorado Constitution Article V, § 14 provides that the sessions of both houses of the legislature and their committees "shall be open, unless when the business is such as ought to be kept secret."

a. The Sunshine Law applies not only to the General Assembly, but also to meetings of any board, committee, or other policy-making or rule-making body of the General Assembly. Colo. Rev. Stat. § 24-6-402(1)(d).

b. This includes legislative caucus meetings at which public business is discussed. Cole v. State, 673 P.2d 345 (Colo. 1983).

c. Unless the legislature has expressly designated business which "ought to be kept secret" pursuant to § 14 of Article V of the state Constitution, it is presumed that all legislative and committee meetings are subject to the Open Meetings Act. Cole v. State, supra.

d. However, the Sunshine Law was not intended to interfere with the abilities of legislative bodies to perform their duties in a reasonable manner, and thus strict compliance with all requirements, such as giving notice of which matters will be considered at a particular meeting, may not be required. Benson v. McCormick, 195 Colo. 381, 578 P.2d 651 (1978).

3. Courts

a. Although state courts are not subject to the Sunshine Law, they are subject to the federal constitutional requirement under the First Amendment that the public right of access to a criminal trial cannot be denied. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Press Enterprise Co. v. Superior Court, 478 U.S. 1 (1986); see In re P.R., 637 P.2d 346 (Colo. 1981); Star Journal Publ'g Corp. v. County Court, 197 Colo. 234, 591 P.2d 1028 (1978).

b. A judge may order a pretrial proceeding in a criminal case closed only if (1) the dissemination of information would create a clear and present danger to the fairness of the trial; and (2) the prejudicial effect of such information cannot be avoided by any reasonable alternative means. Star Journal Publ'g Corp. v. County Court, 197 Colo. 234, 591 P.2d 1028 (1978). The Colorado Supreme Court has specifically adopted Section 8-3 of the ABA Fair Trial and Free Press Standards (2d ed. 1978).

c. Similarly, the evidentiary phase of a hearing on contempt for refusal to testify before a grand jury may be closed only upon express findings by the court that a public hearing would create a clear and present danger to the investigation of matters pending before the grand jury and that the prejudicial effect of such information of presently pending grand jury matters cannot be avoided by any reasonable alternative less drastic than disclosure. In re P.R., supra.

d. A hearing on child custody proceedings may be closed to the public by the court under Colo. Rev. Stat. § 14-10-128(3).

e. Hearings in juvenile delinquency proceedings are open to the general public under Colo. Rev. Stat. § 19-2-204, unless the court finds that it is in the best interest of the juvenile to exclude the general public, in which case a closed hearing may be held.

4. Nongovernmental bodies receiving public funds or benefits

Under prior law, unless a board or other body was specifically declared to be a state agency or authority by its organic legislation, it was not subject to the Sunshine Law. James v. Board of Comm'rs of Denver Urban Renewal Authority, 200 Colo. 28, 611 P.2d 976 (1980). Under the 1991 amendments, any public or private entity to which the state or a political subdivision of the state, or an official thereof, has delegated a governmental decision-making function is subject to the Sunshine Law. Colo. Rev. Stat. §§ 24-6-402(1)(a) and 24-6-402(1)(d). Persons on the administrative staff of the state or local public body, however, are exempted.

If a board or body does not meet the above definition, its meetings are not open to the general public in Colorado.

Under the 1991 amendments, any public or private entity to which the state or a political subdivision of the state, or an official thereof, has delegated a governmental decision-making function is subject to the Sunshine Law. Colo. Rev. Stat. §§ 24-6-402(1)(a) and 24-6-402(1)(d). Persons on the administrative staff of the state or local public body, however, are exempted.
If a board or body does not meet the above definition, its meetings are not open to the general public in Colorado.

6. Multi-state or regional bodies

7. Advisory boards and commissions, quasi-governmental entities

Under the 1991 amendments, any public or private entity to which the state or a political subdivision of the state, or an official thereof, has delegated a governmental decision-making function is subject to the Sunshine Law. Colo. Rev. Stat. §§ 24-6-402(1)(a) and 24-6-402(1)(d). Persons on the administrative staff of the state or local public body, however, are exempted.
If a board or body does not meet the above definition, its meetings are not open to the general public in Colorado.

8. Other bodies to which governmental or public functions are delegated

Governing Boards of Universities.

As amended in 1987, Colo. Rev. Stat. § 24-6-402(2)(a) declares that meetings of the Board of Regents of the University of Colorado or any other governing board of a state institution of higher education are open to the public. Colo. Sess. Laws 1987, ch. 166, § 1.

The 1987 amendment legislatively reversed the Colorado Supreme Court's decision in Associated Students v. Regents of University of Colorado, 189 Colo. 482, 543 P.2d 59 (1975), which had held the Board of Regents exempt from the Sunshine Law.

The 1991 amendments include the governing board of any state institution of higher education, and specifically the Regents of the University of Colorado, within the definition of a "state public body" subject to Sunshine Law. Colo. Rev. Stat. § 24-6-402(1)(d).

A search committee of a state public body or local public body shall establish job search goals, including the writing of the job description, deadlines for applications, requirements for applicants, selection procedures, and the time frame for appointing or employing a chief executive officer of an agency, authority, institution, or other entity at an open meeting. A list of all finalists being considered for a position shall be made public by the search committee no less than fourteen days prior to the first interview conducted for the position. Records submitted by or on behalf of a finalist for such position shall be subject to the provisions of Colo. Rev. Stat. § 24-72-204(3)(a)(XI). Colo. Rev. Stat. § 24-6-402(3.5).

Student Loan Authority. Meetings of the Board of Directors of the Colorado Student Obligation Board Authority are required to be open to the public by Colo. Rev. Stat. § 23-3.1-205(2).

9. Appointed as well as elected bodies

D. What constitutes a meeting subject to the law

1. Number that must be present

a. Must a minimum number be present to constitute a "meeting"?

State. Under Colo. Rev. Stat. § 24-6-402(2)(a), all meetings attended by two or more members of any state board, commission, committee, or other body at which any public business is discussed or at which any formal action may be taken are declared public meetings open to the public at all times.

Local Government. Under Colo. Rev. Stat. § 24-6-402(2)(b), all meetings of a quorum, or of three or more members of any local public body, whichever is fewer, at which any public business is discussed or at which any formal action may be taken are declared public meetings open to the public at all times.

The former local government open meetings law simply declares that "all meetings" are open to the public, without specifying a required number in attendance. Colo. Rev. Stat. § 29-9-101(1) (Repealed 1991).

b. What effect does absence of a quorum have?

Because a meeting is open to the public if only two members of any state board or commission, or if only three members of a local government board or commission attend, the absence of a quorum does not affect the public status of the meeting, although it may affect the business conducted at the meeting.

2. Nature of business subject to the law

(a). Public Business. Meetings subject to the Sunshine Law are "any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication." Colo. Rev. Stat. § 24-6-402(1)(b). This general rule of application, however, is subject to several specific exceptions. Board of Cty. Comm'rs, Costilla Cty. v. Costilla Cty. Conservancy Dist., 88 P.3d 1188 (Colo. 2004) (for a meeting to be subject to Open Meetings Law, there must be a demonstrated link between the meeting and the policy-making powers of the public body, for example enactment of a rule, regulation, or ordinance, or a discussion of a pending measure or action which is subsequently "rubber stamped" by the public body. Mere discussion of matters of public importance does not trigger the Open Meetings Law.)

(b). Public Employment. Meetings of a state public body to consider appointment or employment of public officials or employees or the dismissal, discipline, promotion, demotion, compensation of, or charges or complaints against public officials or employees are open unless the public applicant, official, or employee requests an executive session. Colo. Rev. Stat. § 24-6-402(3)(b). However, meetings of local public bodies to consider similar matters with respect to public employees (not public officials) are closed unless the subject of the executive session requests that it be conducted as an open meeting. Colo. Rev. Stat. § 24-6-402(4)(f).

(c). Exemptions.

Social gatherings. The Sunshine Law does not apply to any chance meeting or social gathering at which discussion of public business is not the central purpose. Colo. Rev. Stat. § 24-6-402(2)(e).

Executive sessions. A state public body otherwise subject to the Sunshine Law may, after an announcement to the public of the topic for discussion in the executive session and upon a two-thirds vote of its entire membership, and a local government upon a two-thirds vote of the quorum present, hold an executive session at regular or special meetings. Colo. Rev. Stat. § 24-6-402(3)(a) (state); Colo. Rev. Stat. § 24-6-402(4) (local). Discussion in an executive session of a state or local public body shall be recorded in the same manner and media that the body uses to record minutes of open meetings. An electronic recording satisfies the requirement. A public body going into executive session shall identify the particular matter to be discussed therein in as much detail as possible. Colo. Rev. Stat. § 24-6-402(2)(d.5)(I)(A). The public body may meet in executive session only to consider the following matters:

(1) Purchase or sale of public property, if premature disclosure of information would give an unfair advantage to any person whose private interest is adverse to the public interest. Colo. Rev. Stat. § 24-6-402(3)(a)(I) (state); Colo. Rev. Stat. § 24-6-402(4)(a) (local).

However, no member of a state public body may request an executive session as a subterfuge for providing covert information to prospective buyers or sellers, and no member of a local public body may request an executive session for the purpose of concealing that the member has a personal interest in the transaction.

(2) Conferences between a state public body and its attorney to consider legal disputes involving the public body, if the disputes are the subject of pending or imminent court action, Colo. Rev. Stat. § 24-6-402(3)(a)(II), and conferences between a local public body and its attorney for the purpose of receiving specific legal advice on specific legal questions. Colo. Rev. Stat. § 24-6-402(4)(b). Cf. Denver Post Corp. v. Univ. of Colo., 739 P.2d 874 (Colo. App. 1987) (attorney-client privileged communications exempt from Open Records Act). The mere presence or participation of an attorney at an executive session does not satisfy the requirements. However, when an attorney representing a public body determines that a portion of an executive session constitutes a privileged attorney-client communication, no record need be kept thereof and any written minutes shall contain a signed statement by the attorney attesting to the privilege and a signed statement by the chair of the session. Colo. Rev. Stat. § 24-72-204(5.5)(II)(B).

(3) Matters required to be kept confidential by federal law or rules or state statute. Colo. Rev. Stat. §§ 24-6-402(3)(a)(III) (state) and 24-6-402(4)(c) (local). The local public body shall announce the specific citation of the statutes or rules that serve as the basis for such confidentiality before holding the executive session. Colo. Rev. Stat. § 24-6-402(4)(c). See, e.g., Gillies v. Schmidt, 38 Colo. App. 233, 556 P.2d 82 (1976) (public committee subject to local government open meetings law on child abuse may hold executive session not subject to Open Meetings Act to consider child abuse reports and related records where statute required such records to be kept confidential). However, non-confidential matters may not be discussed in closed executive sessions. Gillies v. Schmidt, supra.

(4) Specialized details of security arrangements and investigations regarding defenses against domestic and foreign terrorism which, if disclosed, might reveal information which could be used for violating the law. Colo. Rev. Stat. §§ 24-6-402(3)(a)(IV) (state) and 24-6-402(4)(d) (local).

(6) Meetings of a state public body to consider appointment or employment of public officials or employees or the dismissal, discipline, promotion, demotion, compensation of, or charges or complaints against public officials or employees are open unless the public applicant, official, or employee requests an executive session. Colo. Rev. Stat. § 24-6-402(3)(b). However, at least one court has held that a meeting to discuss the employment status of and possible disciplinary options against the director of a county building and land use department did not need to be open because it constituted "day to day" supervision of an employee within the "supervision of employees" exception. Arkansas Valley Publ’g Co. v. Lake Cty. Bd. of Cty. Comm’rs, 369 P.3d 725, 726-28 (Colo. App. 2015) (involving allegations of criminal activity by director during work hours). Meetings of local public bodies to consider similar matters with respect to public employees (not public officials) are closed unless the subject of the executive session requests that it be conducted as an open meeting. Colo. Rev. Stat. § 24-6-402(4)(f).

iii. Local public bodies may meet in executive session, in addition to the matters listed above to consider the following matters:

(2) Discussion of individual students where public disclosure would adversely affect the persons involved. Colo. Rev. Stat. § 24-6-402(4)(h).

Governing Boards of Institutions of Higher Education (including Board of Regents of University of Colorado). In addition to the matters listed above which may be considered in a closed executive session, the governing board of any institution of higher education, upon its own affirmative vote, may meet in executive session to consider the following matters:

(1) Gifts. Governing boards of state universities may also hold executive sessions to consider acquisition of property as a gift, if requested by the donor. Colo. Rev. Stat. § 24-6-402(3)(a)(I).

(2) Legal Advice. Conferences with an attorney concerning specific claims or grievances or for purposes of receiving legal advice on specific legal questions. However, the mere presence of an attorney at an executive session does not satisfy this requirement. Colo. Rev. Stat. § 24-6-402(3)(a)(II). See Associated Students v. Regents of Univ. of Colo., 189 Colo. 482, 543 P.2d 59 (1975) (Open Meetings Law does not repeal attorney-client privilege).

(4) Honorary awards. Nominations for the awarding of honorary degrees, medals and other institutional awards, as well as proposals for the naming of a building after a person. Colo. Rev. Stat. § 24-6-402(3)(a)(VIII).

(5) Student Discipline. Executive sessions may be held to review administrative actions regarding investigations and reports of charges and complaints against students, unless the student has specifically requested or consented to disclosure of such matters. Colo. Rev. Stat. § 24-6-402(3)(b).

State Parole Board. The state parole board may, by two-thirds vote of the membership present, meet in executive session to consider matters connected with any parole proceedings under its jurisdiction. Colo. Rev. Stat. § 24-6-402(3)(c). However, no final parole decisions may be made by the board while in executive session.

(d). Final Decisions to be Made in Public. Although executive sessions may be held to conduct deliberations on a matter exempt from the Open Meetings law, any final decision must be taken at a subsequently reconvened public meeting. See Colo. Rev. Stat. § 24-6-402(3)(a) (state agencies); Colo. Rev. Stat. § 24-6-402(4) (local government); Colo. Rev. Stat. § 22-32-108(5) (school boards); see also Bagby v. School Dist. No. 1, 186 Colo. 428, 528 P.2d 1299 (1974) (holding that the Open Meetings Law is designed to avoid mere "rubber stamping" in public decisions that are effectively made in private, since the public is entitled to know "the discussions, the motivations, the public arguments and other considerations which led to the discretion exercised . . ."); Einarsen v. City of Wheat Ridge, 43 Colo. App. 232, 604 P.2d 691 (1979); Glenwood Post v. City of Glenwood Springs, 731 P.2d 761 (Colo. App. 1986); Hudspeth v. Board of Cty. Comm'rs, 667 P.2d 775 (Colo. App. 1983); but see Intermountain Rural Elec. Ass’n v. Colo. Public Utils. Comm’n, 298 P.3d 1027, 1031-32 (Colo. App. 2012) ("A commission does not engage in policy-making by providing input on proposed legislation, because passing legislation falls exclusively under the policy-making functions of the General Assembly and the Governor.").

In 2012, the General Assembly passed legislation specifically providing that neither a state nor a local public body may adopt any proposed policy, position, resolution, rule, or regulation or take formal action by secret ballot unless otherwise authorized. However, a vote to elect leadership of a state or local public body by that same public body may be taken by secret ballot, and a secret ballot may be used in connection with the election by a state or local public body of members of a search committee, which committee is otherwise subject to the requirements of the Act, but the outcome of the vote shall be recorded contemporaneously in the minutes of the body. Colo. Rev. Stat. § 24-6-402(2)(d)(IV) (2012).

a. "Information gathering" and "fact-finding" sessions

Open. Under Colo. Rev. Stat. § 24-6-402(2)(a), all meetings attended by two or more members of any state board, commission, committee, or other body at which any public business is discussed or at which any formal action may be taken are declared public meetings open to the public at all times.

Under Colo. Rev. Stat. § 24-6-402(2)(b), all meetings of a quorum, or of three or more members of any local public body, whichever is fewer, at which any public business is discussed or at which any formal action may be taken are declared public meetings open to the public at all times, But see Bd. of Cty. Comm'rs, Costilla Cty. v. Costilla Cty. Conservancy Dist., 88 P.3d 1188 (Colo. 2004) (holding that for a meeting to be subject to Open Meetings Law, there must be a demonstrated link between the meeting and the policy-making powers of the public body; mere discussion of matters of public importance does not trigger the Open Meetings Law).

b. Deliberation toward decisions

Executive sessions may be held to conduct deliberations only on a matter that is expressly exempt from the Open Meetings law; all other "deliberations" must occur at a public meeting. See Bagby v. School Dist. No. 1, 186 Colo. 428, 528 P.2d 1299 (1974) (holding that the Open Meetings Law is designed to avoid mere "rubber stamping" in public decisions that are effectively made in private, since the public is entitled to know "the discussions, the motivations, the public arguments and other considerations which led to the discretion exercised . . .");

3. Electronic meetings

a. Conference calls and video/Internet conferencing

Pursuant to Colo. Rev. Stat. § 24-6-402(1) a meeting is defined as any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication. All such public meetings are subject to the Open Meetings Act § 24-6-402(2).

b. E-mail

Electronic Mail. If elected officials use electronic mail to discuss pending legislation or other public business among themselves, the electronic mail shall be subject to the above requirements. Colo. Rev. Stat. § 24-6-402(2)(d)(III). However, electronic mail communication among elected officials that does not relate to pending legislation or other public business shall not be considered a "meeting" and therefore is not subject to the above requirements.

E. Categories of meetings subject to the law

1. Regular meetings

a. Definition

The statute does not distinguish between "regular" and "special" meetings. A general definition of "meeting" is provided under Colo. Rev. Stat. § 24-6-402(1)(b) as "any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication." Id.

b. Notice

Sunshine Law: "Full and timely" notice. § 24-6-402(2)(c) provides that "full and timely notice to the public" must be given before any meeting can be held at which adoption of any proposed policy, position, resolution, rule, regulation, or formal action occurs, or at which a majority or quorum of the body is in attendance or expected to be in attendance.

"Full and timely notice" is a flexible standard, and the time for giving notice of daily meetings, for example, differs from that of monthly meetings. See Benson v. McCormick, 195 Colo. 381, 578 P.2d 651 (1978).

Some overt action must be taken by the public body within a reasonable time to give notice to the public that a meeting is to be held. Hyde v. Banking Board, 38 Colo. App. 41, 552 P.2d 32 (1976).

A local government body is deemed to have given full and timely notice if notice of the meeting is posted in a designated place within the boundaries of the local government body no less than 24 hours before the meeting. Colo. Rev. Stat. § 24-6-402(2)(c).

Notice under Colo. Rev. Stat. § 24-6-402(2) must be given to the public, that is, made available to the public by posting notice in an area open to public view, see Hyde v. Banking Board, supra, or by distributing copies of the notice to the media. See Benson v. McCormick, supra. Places of posting notices of local government body meetings shall be designated annually at the body's first regular meeting of each calendar year.

"Sunshine Lists." Persons who within the previous two years have requested notification of all meetings of a local public body or of meetings where certain specified policies are discussed shall have their names placed on a "sunshine list" by the secretary or clerk of the state or local public body. The secretary or clerk shall then provide reasonable advance notification of such meetings to all persons on the list. Colo. Rev. Stat. § 24-6-402(7). However, notice to persons on the Sunshine List is not a substitute for notice to the general public. Hyde v. Banking Board, supra.

Although notice under Colo. Rev. Stat. § 24-6-402(2)(c) must be "full," it need not designate with specificity the precise agenda for each meeting, particularly if a strict agenda would interfere with public duties. See Benson v. McCormick, supra. However, the posting shall include specific agenda information where possible. Colo. Rev. Stat. § 24-6-402(2)(c).

In determining whether the notice at issue is "full," courts apply an objective standard, meaning that a notice should be interpreted in light of the knowledge of an ordinary member of the community to whom it is directed. Town of Marble v. Darien, 181 P.3d 1148, 1152 (Colo. 2008). A notice need not precisely set forth every single item to be considered at a meeting and is sufficient as long as the items actually considered at the meeting are reasonably related to the subject matter indicated by the notice. Id. at 1153.

Any resolution, rule, or regulation made or any formal or quasi-formal action taken by a public body at a meeting which is not public or for which notice was not given is invalid. Colo. Rev. Stat. § 24-6-402(8). Lanes v. State Auditor's Office, 797 P.2d 764 (Colo. App. 1990); see Hyde v. Banking Board, supra (invalidating order of board issued at meeting where no public notice of meeting was given). However, unintentional failure to provide advance notice of meetings to persons on a "sunshine list" will not nullify actions taken at an otherwise properly published meeting. Colo. Rev. Stat. § 24-6-402(7).

c. Minutes

Minutes of meetings of any state public body shall be promptly recorded and such records shall be open to public inspection. Colo. Rev. Stat. § 24-6-402(2)(d)(I).

Minutes of meetings of any local government public body at which the adoption of any proposed policy, position, rule, regulation, or formal action occurs or could occur shall be promptly recorded and such records shall be open to public inspection. Colo. Rev. Stat. § 24-6-402(2)(d)(II).

a. Definition

An "emergency" is defined as "an unforeseen combination of circumstances or the resulting state that calls for immediate action." Thus, an emergency necessarily presents a situation in which public notice, and likewise, a public forum, would be either impractical or impossible. Lewis v. Town of Nederland, 934 P.2d 848 (Colo. App. 1996).

b. Notice requirements

Sec. 24-6-402(2)(c) provides that "full and timely notice to the public" must be given before any public meeting can be held. but see Lewis v. Town of Nederland, 934 P.2d 848, 851 (Colo. App. 1996) (holding that ratification of action taken at an emergency meeting at either the next regular Board meeting or a special meeting where public notice of the emergency has been given, satisfy the requirements of the Open Meetings Law under emergency circumstances).

Sunshine Law: "Full and timely" notice. § 24-6-402(2)(c) provides that "full and timely notice to the public" must be given before any meeting can be held at which adoption of any proposed policy, position, resolution, rule, regulation, or formal action occurs, or at which a majority or quorum of the body is in attendance or expected to be in attendance.

"Full and timely notice" is a flexible standard, and the time for giving notice of daily meetings, for example, differs from that of monthly meetings. See Benson v. McCormick, 195 Colo. 381, 578 P.2d 651 (1978).

Some overt action must be taken by the public body within a reasonable time to give notice to the public that a meeting is to be held. Hyde v. Banking Board, 38 Colo. App. 41, 552 P.2d 32 (1976).

A local government body is deemed to have given full and timely notice if notice of the meeting is posted in a designated place within the boundaries of the local government body no less than 24 hours before the meeting. Colo. Rev. Stat. § 24-6-402(2)(c).

Notice under Colo. Rev. Stat. § 24-6-402(2) must be given to the public, that is, made available to the public by posting notice in an area open to public view, see Hyde v. Banking Board, supra, or by distributing copies of the notice to the media. See Benson v. McCormick, supra. Places of posting notices of local government body meetings shall be designated annually at the body's first regular meeting of each calendar year.

"Sunshine Lists." Persons who within the previous two years have requested notification of all meetings of a local public body or of meetings where certain specified policies are discussed shall have their names placed on a "sunshine list" by the secretary or clerk of the state or local public body. The secretary or clerk shall then provide reasonable advance notification of such meetings to all persons on the list. Colo. Rev. Stat. § 24-6-402(7). However, notice to persons on the Sunshine List is not a substitute for notice to the general public. Hyde v. Banking Board, supra.

Although notice under Colo. Rev. Stat. § 24-6-402(2)(c) must be "full," it need not designate with specificity the precise agenda for each meeting, particularly if a strict agenda would interfere with public duties. See Benson v. McCormick, supra. However, the posting shall include specific agenda information where possible. Colo. Rev. Stat. § 24-6-402(2)(c).In determining whether the notice at issue is “full,” courts apply an objective standard, meaning that a notice should be interpreted in light of the knowledge of an ordinary member of the community to whom it is directed. Town of Marble v. Darien, 181 P.3d 1148, 1152 (Colo. 2008). A notice need not precisely set forth every single item to be considered at a meeting and is sufficient as long as the items actually considered at the meeting are reasonably related to the subject matter indicated by the notice. Id. at 1153.

Any resolution, rule, or regulation made or any formal or quasi-formal action taken by a public body at a meeting which is not public or for which notice was not given is invalid. Colo. Rev. Stat. § 24-6-402(8). Lanes v. State Auditor's Office, 797 P.2d 764 (Colo. App. 1990); see Hyde v. Banking Board, supra (invalidating order of board issued at meeting where no public notice of meeting was given). However, unintentional failure to provide advance notice of meetings to persons on a "sunshine list" will not nullify actions taken at an otherwise properly published meeting. Colo. Rev. Stat. § 24-6-402(7).

c. Minutes

Minutes of meetings of any state public body shall be promptly recorded and such records shall be open to public inspection. Colo. Rev. Stat. § 24-6-402(2)(d)(I).

Minutes of meetings of any local government public body at which the adoption of any proposed policy, position, rule, regulation, or formal action occurs or could occur shall be promptly recorded and such records shall be open to public inspection. Colo. Rev. Stat. § 24-6-402(2)(d)(II).

3. Closed meetings or executive sessions

a. Definition

An executive session is a closed meeting which is attended only by the members of the public body and, in some cases, by attorneys, witnesses, or persons who are the subject of the meeting or action to be taken by the body or other persons invited by the body. See Hudspeth v. Board of Cty. Comm'rs, 667 P.2d 115 (Colo. App. 1983); Einarsen v. City of Wheat Ridge, 43 Colo. App. 232, 604 P.2d 691 (1979); see also Colo. Rev. Stat. § 22-32-108(5) (executive sessions of school boards).

b. Notice requirements

An executive session may be held only at a regular or special meeting, and only after the announcement to the public of the topic for discussion in the executive session and the affirmative vote of two-thirds of the entire membership of the state public body or two-thirds of the quorum present of the local public body. Colo. Rev. Stat. §§ 24-6-402(3)(a) (state) and 24-6-402(4) (local). If an executive session is not convened properly, then the meeting and the recorded minutes are open to the public. Gumina v. City of Sterling, 119 P.3d 527, 530 (Colo. App. 2004) (Colo. App. 2004) (City council's failure to "strictly comply" with the requirements of the statute rendered its meeting open and the terminated city employee had the right to inspect the minutes.); Zubeck v. El Paso County Ret. Plan, 961 P.2d 597, 600 (Colo. App. 1998); WorldWest LLC v. Steamboat Springs Sch. Dist. RE-2 Bd. of Educ., No. 07-CA-1104, 37 Media L. Rep. (BNA) 1663 (Colo. App. 2009); Ctr. for Indep. Media v. Indep. Ethics Comm’n of Colo., No. 09-cv-5109, 37 Media L. Rep. (BNA) 2522 (Colo. Denver Dist. Ct. Aug. 31, 2009)

Sunshine Law: "Full and timely" notice. § 24-6-402(2)(c) provides that "full and timely notice to the public" must be given before any meeting can be held at which adoption of any proposed policy, position, resolution, rule, regulation, or formal action occurs, or at which a majority or quorum of the body is in attendance or expected to be in attendance.

"Full and timely notice" is a flexible standard, and the time for giving notice of daily meetings, for example, differs from that of monthly meetings. See Benson v. McCormick, 195 Colo. 381, 578 P.2d 651 (1978).

Some overt action must be taken by the public body within a reasonable time to give notice to the public that a meeting is to be held. Hyde v. Banking Board, 38 Colo. App. 41, 552 P.2d 32 (1976).

A local government body is deemed to have given full and timely notice if notice of the meeting is posted in a designated place within the boundaries of the local government body no less than 24 hours before the meeting. Colo. Rev. Stat. § 24-6-402(2)(c).

Notice under Colo. Rev. Stat. § 24-6-402(2) must be given to the public, that is, made available to the public by posting notice in an area open to public view, see Hyde v. Banking Board, supra, or by distributing copies of the notice to the media. See Benson v. McCormick, supra. Places of posting notices of local government body meetings shall be designated annually at the body's first regular meeting of each calendar year.

"Sunshine Lists." Persons who within the previous two years have requested notification of all meetings of a local public body or of meetings where certain specified policies are discussed shall have their names placed on a "sunshine list" by the secretary or clerk of the state or local public body. The secretary or clerk shall then provide reasonable advance notification of such meetings to all persons on the list. Colo. Rev. Stat. § 24-6-402(7). However, notice to persons on the Sunshine List is not a substitute for notice to the general public. Hyde v. Banking Board, supra.

Although notice under Colo. Rev. Stat. § 24-6-402(2)(c) must be "full," it need not designate with specificity the precise agenda for each meeting, particularly if a strict agenda would interfere with public duties. See Benson v. McCormick, supra. However, the posting shall include specific agenda information where possible. Colo. Rev. Stat. § 24-6-402(2)(c).

Any resolution, rule, or regulation made or any formal or quasi-formal action taken by a public body at a meeting which is not public or for which notice was not given is invalid. Colo. Rev. Stat. § 24-6-402(8). Lanes v. State Auditor's Office, 797 P.2d 764 (Colo. App. 1990); see Hyde v. Banking Board, supra (invalidating order of board issued at meeting where no public notice of meeting was given). However, unintentional failure to provide advance notice of meetings to persons on a "sunshine list" will not nullify actions taken at an otherwise properly published meeting. Colo. Rev. Stat. § 24-6-402(7).

c. Minutes

Minutes of executive sessions need only reflect the general subject matter of discussions. Colo. Rev. Stat. § 24-6-402(2)(d). However, in the case of a meeting of a board of education during which an executive session is held, the minutes of the meeting must indicate the topic of the discussion at the executive session as well as the amount of time each topic was discussed while the board was meeting in executive session. The minutes along with the amount of time each topic was discussed must be posted on the web site of the board not later than ten business days following the meeting at which the minutes are approved by the board. Colo. Rev. Stat. § 22-32-108(5)(d) (2014).
Minutes of executive session are not public records unless court determines that topic was not properly announced or, upon in camera inspection, court determines that discussion went substantially beyond the scope of the announced topic or included formal action or adoption of policy, position, or resolution. Colo. Rev. Stat. § 24-72- 204(5.5)(b).

d. Requirement to meet in public before closing meeting

An executive session may be held only after the announcement to the public of the topic for discussion in the executive session and the affirmative vote of two-thirds of the entire membership of the state public body or two-thirds of the quorum present of the local public body. Colo. Rev. Stat. §§ 24-6-402(3)(a) (state) and 24-6-402(4) (local).

e. Requirement to state statutory authority for closing meetings before closure

f. Tape recording requirements

Discussion in an executive session of a state or local public body shall be recorded in the same manner and media that the body uses to record minutes of open meetings. An electronic recording satisfies the requirement. See Gumina v. City of Sterling, 119 P.3d 527 (Colo. App. 2004).

F. Recording/broadcast of meetings

In general, whether a meeting may be recorded or broadcast is left to the discretion of the particular public body. The Open Meetings law contains no guarantee or prohibition of recording or broadcast of public meetings. If a public body electronically recorded the minutes of its open meetings on or after August 8, 2001, then it must continue to electronically record all its open meetings; except that electronic recording will not be required for two successive meetings while the regular equipment is inoperable. Colo. Rev. Stat. §§ 24-6-402(2)(d.5)(I)(A) (state) and 24-6-402(2)(d.5)(II)(A) (local).

The photographing, broadcasting, televising, or recording of administrative hearing proceedings is governed in accordance with Canon 3 of the Code of Judicial Conduct. Division of Administrative Hearings Rule of Procedure 6.

At least one court has held that neither the Open Meetings Law nor the First Amendment guarantees the media any right to broadcast a public meeting. Combined Commc'ns Corp. v. Finesilver, 672 F.2d 818 (10th Cir. 1982). The test applied was whether the potential for disruption of the meeting outweighs the benefit to the public from a broadcast of the proceedings.

1. Sound recordings allowed

2. Photographic recordings allowed

G. Access to meeting materials, reports and agendas

H. Are there sanctions for noncompliance?

Any resolution, rule, or regulation made or any formal or quasi-formal action taken by a public body at a meeting which is in violation of the statute is declared invalid. Colo. Rev. Stat. § 24-6-402(8). In all such actions, the prevailing plaintiff recovers costs and reasonable attorney fees. If there is no violation, and if the court finds that the action was frivolous, vexatious, or groundless, then the court shall award costs and reasonable attorney fees to the other party. Colo. Rev. Stat. § 24-6-402(9).

II. Exemptions and other legal limitations

A. Exemptions in the open meetings statute

1. Character of exemptions

The Sunshine Law has been liberally construed in favor of openness and to permit non-public sessions only in specific, relatively narrowly defined circumstances. All discussions not falling within these "executive session" categories must be held in public, and in any event the discussion leading to the final decision must occur in public. See Cole v. State, 673 P.2d 345 (Colo. 1983).

Closures are discretionary, upon public announcement and public vote of two-thirds of body.

2. Description of each exemption

No general provision for closure of meetings "in the public interest" is provided for in the Open Meetings Law.
Chance Meetings and Social Gatherings. The requirements of the Open Meetings Law do not apply to any chance meeting or social gathering at which discussion of public business is not the central purpose. Colo. Rev. Stat. § 24-6-402(2)(e).

B. Any other statutory requirements for closed or open meetings

Boards of county commissioners are required to meet in open session by Colo. Rev. Stat. § 30-10-302.
Boards of Education. Meetings of boards of education are declared open to the public by Colo. Rev. Stat. § 22-32-108(5).
Colorado Student Obligation Bond Authority. Meetings of the board of directors of Colorado Student Obligation Bond Authority are declared open to the public by Colo. Rev. Stat. § 23-3.1-205(2).
Division of Labor. Sessions of the director of the Division of Labor, or any deputy or referee of the division are required to be open to the public by Colo. Rev. Stat. § 8-1-106(3).
Search committees. Open. A search committee of a state public body or local public body shall establish job search goals, including the writing of the job description, deadlines for applications, requirements for applicants, selection procedures, and the time frame for appointing or employing a chief executive officer of an agency, authority, institution, or other entity at an open meeting. A list of all finalists being considered for a position shall be made public by the search committee no less than fourteen days prior to the first interview conducted for the position. Records submitted by or on behalf of a finalist for such position shall be subject to the provisions of Colo. Rev. Stat. § 24-72-204(3)(a)(XI). Colo. Rev. Stat. § 24-6-402(3.5).

C. Court mandated opening, closing

Where a public agency or board considers matters declared confidential by statute, the Open Meetings Act does not preclude consideration of such matters in executive sessions closed to the public. Gillies v. Schmidt, 38 Colo. App. 233, 556 P.2d 82 (1976); see Colo. Rev. Stat. §§ 24-6-402(3)(a)(III) and 24-6-402(4)(c) (executive session allowed to consider matters required to be kept confidential by federal or state law). A person seeking access to the records may apply to the court which shall conduct an in camera review of the records of the executive session. If the court determines that the action taken in executive session contravened the law, it shall order those portions of the recorded executive session be open to the public. Colo. Rev. Stat. § 24-72-204(5.5)(II)(C).

Thus, where an Inter-Agency Committee on Child Abuse held closed meetings to consider child abuse reports and records which are declared confidential by statute, the Open Meetings Law did not require public meetings where such confidential reports were considered. Gillies v. Schmidt, supra.

Although these statutory sections grant professional review boards the discretion to close hearings to the public, in practice, complaints and hearings in disciplinary proceedings against licensed professionals are made public. The confidentiality provisions do not confer any right upon a person who is the subject of a disciplinary proceeding to require that hearings be closed to the public. Coe v. United States District Court, 676 F.2d 411 (10th Cir. 1982).

H. Grand jury testimony by public employees

I. Licensing examinations

Open. Local licensing authorities, e.g., liquor or special permit licensing boards, are political subdivisions of the state and thus within the definition of "local public body" of a "political subdivision of the state" subject to the Open Meetings Law. The 1991 amendments change the prior law in this regard. See Lasteika Corp. v. Buckingham, 759 P.2d 925 (Colo. App. 1987).

Liquor Licenses. In addition, public hearings on applications for beer and liquor licenses are required to be held by the local licensing authority, after public notice of the hearing and application has been posted. Colo. Rev. Stat. § 12-47-136(1) (liquor licenses); Colo. Rev. Stat. § 12-46-117(3) (beer licenses).

J. Litigation, pending litigation or other attorney-client privileges

Conferences between a state public body and its attorney to consider legal disputes involving the public body, if the disputes are the subject of pending or imminent court action, are closed, Colo. Rev. Stat. § 24-6-402(3)(a)(II), as are conferences between a local public body and its attorney for the purpose of receiving specific legal advice on specific legal questions. Colo. Rev. Stat. § 24-6-402(4)(b). Cf. Denver Post Corp. v. Univ. of Colo., 739 P.2d 874 (Colo. App. 1987) (attorney-client privileged communications exempt from Open Records Act). The mere presence or participation of an attorney at an executive session does not satisfy the requirements.

1. Any sessions regarding collective bargaining

2. Only those between the public employees and the public body

Local governments, including school boards, may meet in executive session to determine positions relative to issues that may be subject to negotiation, to receive reports on negotiations progress and status, to develop strategy, and to instruct negotiators. Colo. Rev. Stat. § 24-6-402(4)(e).

Open, unless the state board of parole by two-thirds vote of membership present at the meeting elects to proceed in executive session to consider matters connected with any parole proceedings under its jurisdiction. Colo. Rev. Stat. § 24-6-402(3)(c). However, no final parole decisions may be made by the board while in executive session.

M. Patients, discussions on individual patients

N. Personnel matters

1. Interviews for public employment

Meetings of a state public body to consider appointment or employment of public officials or employees or the dismissal, discipline, promotion, demotion, compensation of, or charges or complaints against public officials or employees are open unless the public applicant, official, or employee requests an executive session. Colo. Rev. Stat. § 24-6-402(3)(b). However, meetings of local public bodies to consider similar matters with respect to public employees (not public officials) are closed unless the subject of the executive session requests that it be conducted as an open meeting. Colo. Rev. Stat. § 24-6-402(4)(f).

2. Disciplinary matters, performance or ethics of public employees

Meetings of a state public body to consider appointment or employment of public officials or employees or the dismissal, discipline, promotion, demotion, compensation of, or charges or complaints against public officials or employees are open unless the public applicant, official, or employee requests an executive session. Colo. Rev. Stat. § 24-6-402(3)(b). However, at least one court has held that a meeting to discuss the employment status of and possible disciplinary options against the director of a county building and land use department did not need to be open because it constituted "day to day" supervision of an employee within the "supervision of employees" exception. Arkansas Valley Publ’g Co. v. Lake Cty. Bd. of Cty. Comm’rs, 369 P.3d 725, 726-28 (Colo. App. 2015) (involving allegations of criminal activity by director during work hours). Meetings of local public bodies to consider similar matters with respect to public employees (not public officials) are closed unless the subject of the executive session requests that it be conducted as an open meeting. Colo. Rev. Stat. § 24-6-402(4)(f).

3. Dismissal, considering dismissal of public employees

Meetings of a state public body to consider appointment or employment of public officials or employees or the dismissal, discipline, promotion, demotion, compensation of, or charges or complaints against public officials or employees are open unless the public applicant, official, or employee requests an executive session. Colo. Rev. Stat. § 24-6-402(3)(b). However, meetings of local public bodies to consider similar matters with respect to public employees (not public officials) are closed unless the subject of the executive session requests that it be conducted as an open meeting. Colo. Rev. Stat. § 24-6-402(4)(f).

O. Real estate negotiations

Closed. A public body may by two-thirds vote go into executive session to consider purchase of property for public use or sale of public property, if disclosure of information would give an unfair advantage to any person whose interest is adverse to the public interest. Colo. Rev. Stat. §§ 24-6-402(3)(a)(I) (state) and 24-6-402(4)(a) (local).

P. Security, national and/or state, of buildings, personnel or other

Closed. A public body may by two-thirds vote go into executive session to discuss specialized details of security arrangements where disclosure of discussions might reveal information that could be used to violate the law or avoid prosecution. Colo. Rev. Stat. §§ 24-6-402(3)(a)(IV) (state) and 24-6-402(4)(d) (local).

Elementary and High Schools. Closed. Colo. Rev. Stat. § 24-6-402(4)(h) authorizes executive sessions to consider actions, investigations, reports, charges, and complaints against any elementary or high school student. See also Colo. Rev. Stat. § 22-32-108(5) (boards of education may meet in executive session).

IV. Procedure for asserting right of access

A. When to challenge

1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

The Open Meetings Law does not provide any expedited procedure for agency review of requests to attend upcoming meetings. However, persons who wish to receive notice of upcoming meetings may request the secretary or clerk of the public body to place their names on a "sunshine list" pIn general, a person who seeks access to a meeting should attend and request admittance. Unruly or indecorous conduct of the person seeking admittance is not advisable, since this will only give the public body legitimate grounds for exclusion.
ursuant to Colo. Rev. Stat. § 24-6-402(7).

2. When barred from attending

In general, a person who seeks access to a meeting should attend and request admittance. Unruly or indecorous conduct of the person seeking admittance is not advisable, since this will only give the public body legitimate grounds for exclusion.

1. Where to ask for ruling

a. Administrative forum

b. State attorney general

c. Court

Colo. Rev. Stat. § 24-6-402(9) provides that upon the application of "any citizen" of the State of Colorado, an injunction may be issued by any court of record to enforce the purposes of the Sunshine Law. See Bagby v. School District No. 1, 186 Colo. 428, 528 P.2d 1299 (1974).

3. Contents of request for ruling

4. How long should you wait for a response

5. Are subsequent or concurrent measures (formal or informal) available?

C. Court review of administrative decision

Enforcement by Injunction. Colo. Rev. Stat. § 24-6-402(9) provides that upon the application of "any citizen" of the State of Colorado, an injunction may be issued by any court of record to enforce the purposes of the Sunshine Law. See Bagby v. School District No. 1, 186 Colo. 428, 528 P.2d 1299 (1974).

A person who desires to require a public body to hold open or public meetings or hearings should apply to the district court of the district where the public body meets for an injunction pursuant to Colo. Rev. Stat. § 24-6-402(9) and Colo. R. Civ. P. 65. See, e.g., Benson v. McCormick, 195 Colo. 381, 578 P.2d 651 (1978); Associated Students v. Regents of Univ. of Colo., 189 Colo. 482, 543 P.2d 59 (1975). The injunction should be sought to order the public body to cease and desist holding further closed meetings or executive sessions to the exclusion of the public.

Procedure for Injunctive Relief:

Temporary Restraining Order. A person denied access to a meeting may be granted a temporary restraining order (TRO) without written or oral notice to the adverse party only if: (1) it clearly appears from specific facts shown by affidavit, verified complaints, or testimony that immediate and irreparable injury will result to the applicant before the adverse party can be heard; and (2) the applicant's attorney certifies the efforts made to give notice and the reasons supporting the claim that notice is not required. Colo. R. Civ. P. 65(b).

TROs may not exceed 10 days, and a motion for preliminary injunction shall be set for hearing at the earliest possible time and take precedence over all matters except similar older matters.

In general, a TRO should only be sought to restrain a public body from closing a single meeting.

However, a court has no authority to issue a TRO or order enjoining an administrative board or agency from holding a scheduled hearing altogether, Banking Board v. District Court, 177 Colo. 77, 492 P.2d 837 (1972).

Preliminary Injunction.

Upon notice to the adverse party, a person may seek a preliminary injunction restraining a public body from meeting in closed session. Colo. R. Civ. P. 65(a)(1).

The court may order a hearing on an application for a preliminary injunction consolidated with the trial on the merits. Colo. R. Civ. P. 65(a)(2).

Mandatory Injunction. If merely restraining a public body from meeting in secret will not grant effective relief, the court may make the injunction mandatory and order all subsequent meetings to be open to the public. See Colo. R. Civ. P. 65(f).

Bond for Costs. Any party seeking a TRO or injunction may be required to give security pursuant to Colo. R. Civ. P. 65(c), which may be in the form of a cash bond, surety bond, property bond, or letter of credit. See Colo. R. Civ. P. 121 § 1-23.

1. Who may sue?

In 2014, the General Assembly enacted legislation providing that “[a]ny person denied or threatened with denial of any of the rights that are conferred on the public by [the Open Meetings Law] has suffered an injury in fact, and therefore, has standing to challenge the violation.” Colo. Rev. Stat. § 24-6-402(9)(a).

Courts have recognized that, by using this language, the Open Meetings Law “creates a legally protected interest on behalf of Colorado citizens in having public bodies conduct business openly in conformity with its provisions,” and violations can cause an injury in fact. Weisfield v. City of Arvada, 361 P.3d 1069, 1073 (Colo. App.2015) (city council’s secret ballot caused injury in fact to city resident because he “does not know how each council member voted”). However, other courts have declined to find an injury in fact for a violation alone, particularly where the plaintiff had actual knowledge of and attended an improperly noticed meeting. Downs Douglas v. Mountain Song Cmty. Sch., No. 15-cv-01056-KLM, 2016 WL 1537148, at *8 (D. Colo. Apr. 15, 2016) (“Plaintiff’s allegations that she had actual notice of and attended the meetings . . . are fatal to her OML claim in the absence of any other specified injury in fact.”).

2. Will the court give priority to the pleading?

3. Pro se possibility, advisability

Although no rule restricts an applicant from filing an action pro se to enjoin an agency from holding closed meetings, any non-lawyer who acts as a lawyer on his or her own behalf is held to the same rules and knowledge of the law as an attorney. See Viles v. Scofield, 128 Colo. 185, 261 P.2d 148 (1953). Because the public body will most likely be represented by the Attorney General or agency counsel, a pro se litigant would be at a distinct disadvantage.

The sole exception to this general rule is allowed under Colo. Rev. Stat. § 13-1-127(2), which allows a corporation to appear through an officer or director where the amount in controversy does not exceed $10,000.00, the corporation is closely held, and there has been a written resolution signed by at least 50 percent of the shareholders. See Colo. Rev. Stat. §§ 13-1-127(2)(a) and (b).

4. What issues will the court address?

a. Open the meeting

b. Invalidate the decision

Colo. Rev. Stat. § 24-6-402(8) provides that no resolution, rule, regulation, ordinance, or formal action of a state agency, board, committee, commission, or other body shall be valid unless taken or made at a meeting which is open to the public and of which full and timely public notice has been given. See Lanes v. State Auditor's Office, 797 P.2d 764 (Colo. App. 1990). However, unintentional failure to provide advance notice of meetings to persons on a "sunshine list" will not nullify actions taken at an otherwise properly published meeting. Colo. Rev. Stat. § 24-6-402(7).

Courts will not invalidate a decision if the state or local public body “cured” the violation at a subsequent complying meeting, provided the subsequent meeting was not a mere “rubber stamping” of the earlier decision made in violation of the law. Colo. Off-Highway Vehicle Coalition v. Colo. Bd. of Parks & Outdoor Recreation, 292 P.3d 1132, 1137-38 (Colo. App. 2012).

A declaration that an agency rule or action is invalid should be sought as a declaratory judgment under Colo. R. Civ. P. 57. The agency, board or commission should be named as an adverse party. See, e.g., Littleton Educ. Ass'n v. Arapahoe Cty. Sch. Dist. No. 6, 191 Colo. 411, 553 P.2d 793 (1976) (collective bargaining agreement reached in secret in violation of public meetings law declared void).

However, only the persons affected by the rule or action made or taken without compliance with the Open Meetings law have standing to seek a declaration that the rule or action is invalid. See Colo. R. Civ. P. 57(b).

c. Order future meetings open

5. Pleading format

A complaint for injunctive relief should be verified or accompanied by an affidavit of the party seeking relief. It should also state that relief is being sought pursuant to Colo. Rev. Stat. § 24-6-402(9), specify the relief requested, and state that no plain or adequate remedy exists at law.

6. Time limit for filing suit

7. What court?

Only the district court of the district where the agency or board is located, or where the meetings are held, has jurisdiction and venue to grant relief. Because most state agencies are located and meet in Denver, the proper court would be Denver District Court.

8. Judicial remedies available

9. Availability of court costs and attorney's fees

Court costs may be awarded to the prevailing party at the court's discretion pursuant to Colo. Rev. Stat. § 13-16-114.

An award of attorney fees in an action to enforce the Open Meetings Law may be made to the citizen bringing suit if the court finds a violation of law. § 24-6-402(9); see also Zubeck v. El Paso Cty. Ret. Plan, 961 P.2d 597 (Colo. App. 1998). However, if the court does not find a violation of the section, it shall award costs and attorney fees to the prevailing party if the court finds that the action was frivolous, vexatious, or groundless. Colo. Rev. Stat. § 24-6-402(9). Attorney fees may be awarded to the government entity if an application seeking access to a record of an executive session is found vexatious, groundless, or frivolous. Colo. Rev. Stat. § 27-72-204(3)(a)(XI)(A)(5.5)(a).

10. Fines

11. Other penalties

Any actions in violation of the statute are declared invalid. Colo. Rev. Stat. § 24-6-402(8). In all such actions, the prevailing plaintiff recovers costs and reasonable attorney fees. If there is no violation, and if the court finds that the action was frivolous, vexatious, or groundless, then the court shall award costs and reasonable attorney fees to the other party. Colo. Rev. Stat. § 24-6-402(9).

D. Appealing initial court decisions

1. Appeal routes

There are two routes of appealing a district court decision which upholds denial of access to meetings of a governmental body.

a. Appeal to the Court of Appeals pursuant to C.A.R. 1. Pursuant to C.A.R. 1(a)(3), an appeal may be taken from an order denying a preliminary injunction. This is the usual route. The major drawback is a one-to-two year wait for a decision from the Court of Appeals.

b. Petition for writ to the Supreme Court pursuant to C.A.R. 21. In extraordinary cases, such as where immediate harm is threatened in the absence of an open meeting, or where the issue presented is likely to arise again, the applicant may petition to Supreme Court directly under Appellate Rule 21 for a writ of mandamus directing the district court to order that the further holding or closed meetings be enjoined.

A Rule 21 petition is not a substitute for an appeal to the Court of Appeals.

2. Time limits for filing appeals

An appeal to the Court of Appeals must be filed within 45 days of the date of the final order denying the injunction in the district court. C.A.R. 4(a).
A petition to the Supreme Court under C.A.R. 21 should be filed at the earliest practicable time. There is no time limitation on the petition, but it must be "within a reasonable time" of the district court's order.

3. Contact of interested amici

a. Leave of court required. Briefs by amicus curiae (friends of the court) may be file only with leave of the appellate court. C.A.R. 29. The standard procedure is for the amicus to tender the proposed brief along with the motion for leave to appear as amicus curiae.

b. Interest of Amicus. A motion for leave must identify the interest of the amicus and state why an amicus brief is desirable.

c. Briefs of amicus curiae must be filed within the time for filing briefs allowed the party with the position the amicus will support, unless the court grants leave for later filing. C.A.R. 29.

Amicus curiae are generally restricted to the issues raised by the appealing parties, and any additional questions presented in a brief filed by an amicus curiae will not be considered by the appellate court. United States Nat'l Bank v. People ex rel Dunbar, 29 Colo. App. 93, 480 P.2d 849 (1970).

d. Oral Argument. "A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons." C.A.R. 29.

e. The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

V. Asserting a right to comment

A. Is there a right to participate in public meetings?

No provision in the Open Meetings Law addresses this issue. Unruly or indecorous conduct of the person seeking admittance is not advisable, since this will only give the public body legitimate grounds for exclusion.

B. Must a commenter give notice of intentions to comment?

C. Can a public body limit comment?

D. How can a participant assert rights to comment?

No provision in the Open Meetings Law addresses this issue. Unruly or indecorous conduct of the person seeking admittance is not advisable, since this will only give the public body legitimate grounds for exclusion.

E. Are there sanctions for unapproved comment?

No provision in the Open Meetings Law addresses this issue. Unruly or indecorous conduct of the person seeking admittance is not advisable, since this will only give the public body legitimate grounds for exclusion.